(영문) 대전지방법원 2016.9.21. 선고 2015구합100142 판결

A. On September 1, 2014, the superintendent of the Incheon Metropolitan City Office of Education (hereinafter referred to as the “superintendent of education”) issued a disposition to appoint the Plaintiff as Chigh School Teachers, and Plaintiff B as D High School Teachers (hereinafter referred to as the “instant appointment disposition”) pursuant to Article 12(1)2 of the Public Educational Officials Act.

B. On December 29, 2014, the Defendant issued a disposition revoking the instant appointment disposition (hereinafter “instant disposition”) pursuant to Article 167 of the Local Autonomy Act and Article 6 of the Regulations on Delegation and Entrustment of Administrative Authority (hereinafter “Delegation Provisions”) to the Plaintiffs, and the grounds and reasons for the instant disposition are as follows.

-.(c) sound;

○ Grounds for Disposition: Violation of Article 10(2) of the Public Educational Officials Act (hereinafter “Public Educational Officials Act”) provides that an appointment of a public educational official shall be granted to a person who is qualified as a teacher and wants to be appointed in accordance with Article 10 of the Public Educational Officials Act, with equal opportunities for appointment depending on his/her ability. Even if a special appointment is made, a person must be selected through competition methods for persons meeting the same requirements, but a special employment has been made non-disclosure by designating a specific person. In addition, it is illegal to specially employ the plaintiffs as a public educational official on the ground of Article 12(1)2 of the Public Educational Officials Act, inasmuch as there is no reasonable ground to specially employ a teacher in order

C. The Plaintiffs were dissatisfied with the instant disposition and filed an appeal review with the Appeal Commission for Teachers, but the said claim was dismissed on March 25, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2-1, 2-2, Eul evidence 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Article 43(2) of the Public Educational Officials Act provides that “A public educational official shall not be demoted, temporarily laid off, or dismissed against his/her will without a sentence, disciplinary action, or any other reason prescribed by this Act.” However, the Plaintiffs do not constitute ex officio dismissal under Article 43(2) of the Public Educational Officials Act. Nevertheless, the Defendant issued the instant disposition based on the comprehensive supervisory authority under Article 167(1) of the Local Autonomy Act. This is invalid in violation of Article 43(2) of the Public Educational Officials Act and Article 43(2) of the Public Educational Officials Act.

2) A deviation from or abuse of discretionary power

The Defendant: (a) the Superintendent of an Office of Education specially recruited the Plaintiffs as non-disclosure; and (b) revoked the instant appointment disposition on the ground that there was no reasonable ground for the special employment of the Plaintiffs; (c) however, the special employment did not premised on an open screening process, unlike the general employment; and (d) did not actually undergo a public or limited competitive test in the special employment. Moreover, the appointing authority has a wide range of discretion to make a decision on the special employment, taking into account all the circumstances, including the necessity of the special employment, among those who meet the qualification requirements prescribed in Article 12(1) of the Public Educational Officials Act; and (d) in fact, the nationwide Superintendent of an Office of Education has provided relief for the special employment of teachers by the special employment of the city state, the Korean Teachers and Staff Workers’ Union-related cases, and the private school democracy cases; and (e) the Defendant did not revoke the appointment disposition. Nevertheless, the Defendant was unlawful

3) Violation of the principle of trust protection.

The plaintiffs are appointed through legitimate special employment procedures. The plaintiffs trusted that the appointment disposition of this case was legitimate, and there is no reason attributable to the plaintiffs in trust. Nevertheless, only once three months have passed after the appointment disposition of this case, the disposition of this case was illegal as violating the principle of trust protection.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the Constitution violates Article 43(2) of the Teachers' Status and Legal Principle and Public Educational Officials Act

Article 30 subparagraph 1 of the Public Educational Officials Act provides that the right to appoint a lifelong teacher shall be the defendant, and the above right to appoint shall be delegated to the relevant superintendent of education pursuant to Article 33 (1) of the same Act and Article 3 (5) 3 of the Decree on the Appointment of Education. Therefore, the defendant has the right to guide and supervise the exercise of the right to appoint a lifelong teacher, who is the State affairs entrusted by the superintendent of education pursuant to Article 3 of the Local Education Autonomy Act and Article 167 (1) of the Local Autonomy Act, and the defendant has the right to instruct and supervise the exercise of the right to appoint a lifelong teacher, who is the State affairs entrusted by the

Meanwhile, even if there is any defect in the establishment of the disposition, the disposition agency which issued the administrative disposition may cancel it ex officio (see Supreme Court Decision 2001Du9653, May 28, 2002). The disposition in this case is not a disposition to dismiss the plaintiffs pursuant to Article 43(2) of the Public Educational Officials Act, but a disposition to cancel the appointment disposition in this case by the defendant who delegated the right to appoint ordinary teachers to the Superintendent of the Office of Education based on the determination that there is a defect in the appointment disposition in this case, and thus, Article 43(2) of the Public Educational Officials Act is not applicable to the disposition in this case. Accordingly, this part of the plaintiffs' assertion on the premise that the disposition in this case is an ex officio dismissal against the plaintiff is remaining.

Furthermore, there is no reason to view.

2) Whether the discretion is deviates or abused

A) Whether the instant appointment disposition is unlawful because it does not constitute an open screening process for special employment

Article 10 (2) of the Public Educational Officials Act provides that "the appointment of a public educational official shall be guaranteed equal opportunity for appointment according to his/her ability," and Article 11 (1) of the same Act provides that "the appointment of a teacher shall be made through an open screening." Article 12 (1) of the same Act provides that "If a person falls under any of the following subparagraphs, he/she may be specially appointed as prescribed by Presidential Decree." In addition, Article 9-2 of the former Decree on the Appointment of Public Educational Officials (amended by Presidential Decree No. 25890, Dec. 26, 2014) provides that "the appointment of a person who has at least three years of research or work experience equivalent to those of an expected to be appointed shall not be specifically prescribed in the appointment of a person who meets the qualifications under Article 22 of the Early Childhood Education Act, Article 21 of the Elementary and Secondary Education Act, Article 16 of the Higher Education Act, or Article 9 of the Higher Education Act."

Unlike new employment, there is a problem of whether the method of selecting a public educational official should be applied without an explicit provision that the public educational official should be selected through the public educational examination. However, Article 12 (1) 1 of the Public Educational Officials Act provides that where a public educational official retired as a public educational official in a position equivalent to the position at the time of retirement is appointed within two years from the date of his/her retirement due to the expiration of the period of special employment, etc., or where a person retired as a public educational official in a position equivalent to the position at the time of his/her retirement is appointed as a public educational official in a position equivalent to the position at the time of his/her retirement. Article 12 (1) 2 of the Public Educational Officials Act provides that "where a person retired as a public official in general service or a local public official in a position who has been employed as a public educational official in a position at the time of his/her retirement is appointed for at least three years" under Article 12 (1) 3 of the same Act; subparagraph 3 of the same paragraph provides that a person who has difficulty in selecting a public educational official with education experience, educational experience or educational experience.

Article 10(2) and Article 11 of the Public Educational Officials Act provides that a new appointment of a public educational official shall be made through an open screening process pursuant to Article 10(2) and Article 11 of the Public Educational Officials Act; however, since the demand of human resources of an educational institution is complicated and difficult to secure adequate human resources by means of an open screening process, it is recognized as a method to supplement such advantages. Therefore, barring express provisions, deeming that a special appointment can be made by a separate selection method which restricts competition unlike a new appointment, accords with the legislative intent of the special recruitment system. In addition, Article 10(2) of the Public Educational Officials Act only provides that an equal opportunity for appointment based on the ability shall be guaranteed to all persons. Therefore, in light of the language and structure of the above provision, and the purport of the special recruitment system as seen earlier, it is difficult to see that the requirements for the selection method of an open screening process, which is the same as that of an open screening process, have to be derived immediately. Meanwhile, Article 9-2 of the Public Educational Officials Act was amended on January 6, 201.

Therefore, even if the Superintendent of an Office of Education did not undergo an open screening through a competitive examination while selecting the plaintiffs as teachers through special employment under Article 12 (1) 2 of the Public Educational Officials Act, the instant appointment disposition cannot be deemed unlawful in the course of the procedure.

B) Whether the instant appointment disposition is unreasonable on the grounds that there are no reasonable grounds

In light of the following circumstances, with respect to whether the instant appointment disposition is unfair due to the absence of reasonable grounds, it is difficult to view that the instant appointment disposition was inappropriate on the grounds that there is no reasonable ground, in light of the following circumstances that can be seen as having known the overall purport of the pleadings in the written evidence Nos. 8, 9, 10, 11, 16, 17, 19 through 21, 23, and Nos. 2 and 3 (including each number number), as to whether the instant appointment disposition was unfair. Accordingly, the instant disposition that revoked the instant appointment disposition on the ground as above is unlawful as it was erroneous by misunderstanding the facts, thereby deviating from and abusing the discretionary power (no further examination is conducted with respect to the Plaintiff’

(1) (A) From July 1997, the Plaintiffs worked as school teachers of F high school established and operated by school foundation E, and were affiliated with the Korean Teachers' Union (hereinafter referred to as the "Korean Teachers' Union"). From March 1, 2003, Plaintiff A was granted the assignment of an international assistant director of F High School’s school from March 1, 2003 to the position of an international assistant director. Since important school affairs are under way without discussion, the principal’s unilateral decision of the principal and the assistant principal have been resolved, but the above recommendation was not accepted, but the principal failed to attend the meeting seven times from April 7, 200 to June 2, 2003, the Plaintiffs participated in the meeting of the principal of the school, including the Plaintiff’s 2nd school principal’s flusium and the Plaintiff’s right to attend the meeting to unilaterally disclose the school affairs of the principal and the Ethmbsian school principal’s right to attend the meeting. If the principal’s entrance and the Eths right to unilaterally demanded the school principal to leave the school principal’s school.

(B) The plaintiffs appealed and filed a lawsuit for invalidation of removal with the Incheon District Court. On February 9, 2006, the Incheon District Court dismissed the plaintiffs' claim on the grounds that the grounds for disciplinary action against the plaintiffs were recognized as grounds for disciplinary action and the deviation or abuse of the authority to exercise disciplinary discretion (Seoul District Court 2005Gahap7470). The plaintiffs appealed and appealed against the plaintiffs. The Seoul High Court decided on July 3, 2007 ① School Foundation E shall be mitigated to three months from the suspension of disciplinary action against the plaintiffs. ② The plaintiffs shall file an application for transfer to another school other than the educational foundation E at the end of each semester and each school year until July 31, 2012. The plaintiffs shall file an application for transfer to the school foundation E within one week from the date of the above request for transfer, and if so, the school foundation E and the labor relations are terminated on the date following the above one week, ③ the plaintiffs shall not reach the status of the plaintiff's current educational foundation E and the above 3070th of each year until the date of settlement.

(C) Around 201, at least 2,00 people, including the Incheon citizens, professors, new departments, and Gu Council members of the basic organization, etc., of Incheon region, participated in the signature campaign that they should be reinstated from the Fhigh school.

(D) However, as Plaintiff B did not transfer to another school by July 31, 2012, the labor relationship with Plaintiff E was terminated in accordance with the above decision on the recommendation for reconciliation, and Plaintiff A did not file a prior application in the second semester of 2008, and thus the labor relationship with Plaintiff B was terminated in accordance with the above decision on the recommendation for reconciliation.

(E) On December 2011, the Incheon City/Do Council passed a resolution on the complete resolution of the Fschool situation and the proposal for the promotion of the restoration of the teachers from office to the Incheon Metropolitan City Office of Education to transfer it to the Incheon Metropolitan City Office of Education. On November 2013, the Incheon City Council passed a resolution on the "resolution for the public promotion of the special employment of the teachers from office in the F High School" with the content that the Incheon City Office of Education shall urge the plaintiffs to return to the original state, and urge the Incheon City Office of Education to actively endeavor to return to the original state, and urge the citizens to devise a plan for the special employment of the teachers from office as public schools. The Incheon City Office of Education prepared and submitted a written consent that "the consent to the special employment of the plaintiffs for the unity of the education of the 8 Incheon National Assembly members in the Incheon District Office of Education."

(F) As seen above, under the intent and motive of the Plaintiffs’ recommendation to improve school management methods, the act was caused by disciplinary action. As a result, conflicts in FJ and other schools were promoted and polarizationed. Despite the Seoul High Court’s decision to recommend reconciliation, such conflict remains without resolving until 2012. As a result, the public opinion was formed that the Plaintiffs should be reinstated or specially employed for the unity and development of the Incheon Educational System, the Superintendent of an Office of Education admitted public opinion and specially hired the Plaintiffs as public school teachers.

(2) From January 1, 200 to March 2014, an open screening was not conducted even at the time when the Seoul Special Metropolitan City superintendent of education, the Superintendent of the Office of Education, the Superintendent of the Office of Education, the Superintendent of the Office of Education, the Superintendent of the Office of Education, the Daegu Metropolitan City Office of Education, and the Defendant specially employed teachers related to democratization movements or former educational assistance activities.

(3) On January 28, 200, the Defendant established and implemented a special recruitment plan for persons related to private school democracy (including the case where an individual or group action was committed in response to the reorganization of a foundation, the infringement of educational rights, and the right of learning) with the persons related to the case of the former and the violation of the National Security Act. However, as seen earlier, the Plaintiffs recommended the principal of the school to improve the management of school affairs as seen earlier, but did not accept the proposal, but led to the collective action with the members belonging to the former and the former and the latter. The Plaintiffs may also be included in the category of the “persons related to private school democracy, which the Defendant was specially employed.”

(4) 원고들은 F고등학교에서 3년 이상 교사로 근무한 경력이 있어 교육공무원법 제12조 제1항 제2호가 정한 특별채용 요건을 충족하였고, 특별채용의 절차에서 면접 등을 통해 교사로서의 자질을 갖추고 있는지 여부를 검토 · 평가받은 후에 선발되었으며, 이 사건 임용처분 이후 원고 A는 C고등학교에서, 원고 B은 D고등학교에서 성실히 교직을 수행한 것으로 보인다. 또한 앞서 본 이 사건 임용처분의 경위와 사안의 특수성에 비추어 볼 때, 이 사건 임용처분이 교육감이 자신과 특수관계에 있는 사람을 임용하는 등 정실(情實) 내지 보은(報恩)인사에 해당한다거나(원고들과 교육감이 친분 내지 특수관계에 있다고 볼 자료가 없다), 원고들에게 특혜를 부여하는 것으로서 교육공무원법 제10조 제2항의 기회균등의 원칙을 훼손할 우려가 있다고 볼 수 없다.

3. Conclusion

Therefore, the plaintiffs' claim of this case is justified and it is so decided as per Disposition.