Plaintiff (Law Firm Dongin, Attorneys Shin Dong-chul et al., Counsel for plaintiff-appellant)

Defendant School Foundation (Law Firm Squa, Attorneys Jeon-jin et al., Counsel for the defendant-appellant)

July 12, 2007

Gwangju District Court Decision 2006Gahap6272 Decided November 16, 2006

1.The judgment of the first instance shall be modified as follows:

A. The Defendant’s dismissal against the Plaintiff on June 30, 2006 confirms that it is null and void.

B. The defendant shall pay 23,787,960 won to the plaintiff.

C. The plaintiff's remaining claims are dismissed.

2. The total costs of the lawsuit shall be five equal costs and two equal costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. The above paragraph 1(b) may be provisionally executed.

1. Purport of claim

The judgment of this case No. 1-A and the defendant pay to the plaintiff 2,973,495 won per month from July 1, 2006 to the time the plaintiff is reinstated. The defendant shall pay to the plaintiff 50,000,000 won per annum from June 30, 2006 to the time when the duplicate of the petition of this case is served, and 5% per annum from the next day to the day when the copy of the petition of this case is served, and 20% per annum from the next day to the day of complete payment (the plaintiff reduced its claim as to the part of consolation money claim at the trial).

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff falling under the following order for payment shall be revoked. The defendant shall pay to the plaintiff an amount of KRW 50 million with 5% per annum from June 30, 2006 to the service date of a duplicate of the petition of appeal of this case, and 20% per annum from the next day to the day of complete payment.

Defendant: The part against Defendant in the judgment of the first instance court shall be revoked, and the Plaintiff’s claim corresponding to the above revocation shall be dismissed.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of arguments in each of the statements in Gap 1, 26, 27, 33, 34, Eul 2-1 through 4, Eul 4-2, 3, 5, Eul 6-1, 2, Eul 7-1 through 4, 10, and Eul 12-1, 2, and 3:

A. (Omission of Name) The Defendant is a legal entity that establishes and operates a university. On March 1, 1997, the Plaintiff was appointed as a full-time lecturer at the International Institute of Culture and Management of the International University under the Defendant’s control and decided to teach the subjects of culture, such as social science, for three years until February 29, 200.

B. On February 29, 200, the defendant notified the plaintiff on February 29, 200 that the term of appointment expires according to the decision to refuse reappointment to the plaintiff of the board of directors of the defendant corporation. Accordingly, the plaintiff filed a lawsuit to nullify the refusal of reappointment to the Gwangju District Court 2000Gahap4632, and the above court rejected the decision on February 16, 2001. However, the appellate court, which is the appellate court, won the plaintiff's favor on the ground that the decision to refuse reappointment was null and void on June 3, 2005, and the defendant filed a final appeal from the Supreme Court on March 24, 2006, which became final and conclusive as it is.

C. After that, the president of the University requested the Plaintiff to be dismissed on June 30, 206 pursuant to the proviso to Article 56 (1) of the Private School Act, Article 46 (1) of the Articles of incorporation of the Defendant Corporation, on the ground that the major of international tourism and tourism in the International Tourism Department to which the Plaintiff belongs was abolished as the major of the international tourism university was reduced from March 1, 200 to February 28, 2007, the president of the University will be reappointed the Plaintiff to the board of directors of the Defendant Corporation as of June 13, 2006, and that the Plaintiff will be dismissed from office on June 27, 2006, by accepting the above proposal from the board of directors of the Defendant Corporation from March 1, 200 to February 207, 206, and that the Plaintiff will be reappointed from office on June 30, 206 as of June 26, 2006 (the Plaintiff’s dismissal from office).

D. At the 1997 year when the Plaintiff was appointed as a full-time lecturer, there was an international cultural information major and management information major in the International Culture Management Department, and the Plaintiff was affiliated with the international cultural information major. However, the said international cultural information major was changed to the “International Culture Information Department” in 198, to the “International Culture Information Department” in the 1999, to the “International Culture Information Department” in the 1999, and to the “International Tourism Department” in the 2000s, to the “International Tourism Department.”

E. In accordance with the Ministry of Education and Human Resources Development’s Guidelines for Adjustment of the Number of University Students in 2001, the Defendant discontinued the departments with very low student recruitment by coordinating the fixed number of students in the year of 2001 and integrating the relevant departments. The international culture and tourism major of the International Tourism Department to which the Plaintiff belongs was decided to suspend the recruitment of new students in the year of 201 as of August 29, 200 on the ground that the number of students was reduced by 12, 22, 25, and 5, 10, 200 for the fixed number of 25, 199 for the fixed number of students, including 30, 200 for the fixed number of students, and 10, the minimum number of students for the establishment of the major was less than 30,000 for the reduction of the number of students, and it was difficult to secure adequate new students necessary for the operation of the department, and the above departments were closed on February 28, 2012.

2. Determination on the claim to nullify dismissal

A. The parties' assertion

(1) The plaintiff's assertion

The dismissal of this case is unfair since the procedure of this case is not only illegal, but also on the ground of abolition.

(2) The defendant's assertion

The dismissal of this case is justifiable as it is in accordance with Article 56 (1) of the Private School Act and Article 46 (1) of the Articles of Incorporation of the defendant corporation, since international culture and tourism majors, which are the department to which the plaintiff belongs, are abolished from the year 2

B. Determination

(1) In full view of the laws and regulations regarding the guarantee of teachers’ status, in order to ensure the autonomy and specificity of education, the status of teachers is strengthened compared to those of general workers and public officials. ① The State Public Officials Act and the Local Public Officials Act apply to the teachers of national and public schools, while separately enacted public educational officials provide for special cases concerning their qualifications, appointment, remuneration, training, and guarantee of status, and ② the same as those of national and public school teachers in the Private School Act, unlike general workers in the qualifications, service, guarantee of status and social security, are treated as the same as those of national and public school teachers in the Private School Act. ③ In the special law for the improvement of teachers’ status, the status guarantee is emphasized without any distinction between national and public school teachers and private school teachers.

(2) Meanwhile, since the opening and closing of a department is a part of the school operation, the founder and the managing body of the university shall have broad discretion in relation to the school operation. Although this provision is not stipulated in the Private School Act, ex officio dismissal is stipulated in the State Public Officials Act, the Local Public Officials Act, the Private School Act, and the Private School Act, ex officio dismissal of a professor solely on the ground that the establishing and operating body of a university has discontinued by exercising a wide range of discretionary power, it is ultimately a broad discretion in the case of ex officio dismissal, which is ultimately a serious violation in terms of the guarantee of the status of teachers. Therefore, it is necessary to establish objective and reasonable grounds for ex officio dismissal of a professor on the ground of abolition of a department. In this regard, the State Public Officials Act and the Local Public Officials Act provide that the dismissal criteria in consideration of the type of appointment, work performance, job performance, disciplinary action, etc. of a teacher at a private school, the school juristic person, who is a person who has authority to appoint and dismiss, should be determined in accordance with objective and reasonable standards, and should be determined as unlawful.

(3) In full view of the purport of the arguments as to this case’s health class, Gap evidence Nos. 35, Eul evidence Nos. 1, 9, and 11, the defendant corporation did not dismiss only one professor other than the plaintiff from among the professors working at (name omitted) university on the ground of the closure of the lawsuit. In dismissing the plaintiff on the ground of the closure of the lawsuit, the defendant corporation can recognize the fact that the major department of the plaintiff was closed on Feb. 28, 2001 and suspended new students recruitment thereafter without review according to objective and reasonable dismissal criteria, taking into account the Plaintiff’s form of appointment, job performance, job performance, job ability, disciplinary action, etc.

3. Determination on the claim for wages

A. Since the dismissal of the Plaintiff against the Plaintiff is unlawful and void, the employment contract between the Defendant and the Plaintiff still remains valid, and the Plaintiff’s failure to provide labor during the period of dismissal is attributable to the Defendant’s fault attributable to which the Plaintiff was unfairly dismissed, and thus, the Plaintiff may seek payment of the entire wage that can be paid in return for the continued work.

B. Furthermore, with regard to the amount payable, as seen earlier, the facts that the Plaintiff is reappointed from March 1, 200 to February 28, 2007 are as follows. The Plaintiff’s wages amounting to KRW 35,681,950 from March 1, 2006 to February 28, 2007 are no dispute between the parties or can be acknowledged by the purport of the entire pleadings. The following circumstances are as follows: ① the appointment or promotion of teachers is free discretion under the current Private School Act; ② the reappointment or promotion after the expiration of the term of reappointment is also the Defendant’s free discretion; ② the Plaintiff is difficult to be presumed to be reappointed upon the expiration of the term of reappointment; ③ the Plaintiff loses its status as teachers upon the expiration of the term of appointment; ③ the Defendant’s articles of incorporation or personnel management regulations of the Defendant’s 206 to February 28, 2007 】 97 days after the expiration of the term of appointment; and thus, it is reasonable that the Defendant would not be dismissed for the Plaintiff’s dismissal from office 297.7 97.

4. Determination on the claim of consolation money

A. In the case of dismissal of a private school teacher under the conditions as prescribed by the Private School Act, even if such dismissal was made, if it is objectively evident that the dismissal does not constitute a ground for dismissal in light of the provisions of the Private School Act, and if it is objectively evident that the dismissal does not constitute a ground for dismissal in light of the provisions of the Private School Act, etc., and it is obvious that the dismissal would not be permissible under our sound social norms or social norms, such dismissal would not be denied as an illegal disposition that deviates from the scope of discretion or abused discretion, and it would cause mental distress to the other party, and it constitutes a tort in relation to the teacher (see, e.g., Supreme Court Decision 201Da4901, Sept. 24, 2002).

B. As to the instant case, it is insufficient to recognize that the Defendant dismissed the Plaintiff, even though there is no other evidence to acknowledge that the Defendant dismissed the Plaintiff, on the sole basis of the descriptions of the health team, Gap 1 through 25, Gap 27, 29, 30, Gap 32 through 35, and Gap 38 through 42, even though there is no ground to dismiss the Plaintiff, it is objectively evident that the Defendant created a ground for dismissal under the intention to find the Plaintiff at school and dismissed the Plaintiff, or that the facts that the Plaintiff used as the ground for dismissal do not constitute grounds for dismissal do not constitute grounds for dismissal, or because he paid attention to it.

C. Rather, the Defendant unfairly rejected the Plaintiff’s reappointment. Upon the judgment confirming invalidity of the decision to refuse reappointment, the Defendant re-appointed the Plaintiff in accordance with the Ministry of Education and Human Resources Development’s guidelines, and the fact that the Plaintiff’s major department was abolished on February 28, 2001 through due process is as seen earlier. In addition to the circumstances where, under Articles 56(1) and 53-3(1) of the Private School Act, if the fact that the Plaintiff’s major department was abolished at a private university, the cause for dismissal of the Plaintiff is deemed to exist, and the Plaintiff’s allegation that, upon deliberation by the Teachers’ Personnel Committee and the board of directors’ resolution, the Plaintiff could be dismissed against the Plaintiff’s will. In addition, the Defendant’s intentional intention to find the Plaintiff at the school, making the cause for dismissal under the pretext of abolition, or making it difficult for the Defendant to be easily known from the perspective of ordinary people, and thus, the Plaintiff’s ground for dismissal cannot be deemed to constitute a tort.

5. Conclusion

If so, it is confirmed that the dismissal of this case is null and void, and the defendant is obligated to pay 23,787,960 won to the plaintiff. Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair in conclusion, it is so decided as per Disposition by accepting part of the defendant's appeal and changing the judgment of the court of first instance as above

Judges Kim Sang-chul (Presiding Judge)