The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Article 4(2)1 of the Regulations on Disciplinary Action against Teachers and Employees shall be comprised of not less than five and not more than seven members (including one chairperson) by the Intervenor’s Staff Members (hereinafter referred to as the “ Intervenor”) (Article 4(2)1); a person subject to disciplinary action may, where there are reasonable grounds to recognize that a member of the Disciplinary Committee is likely to make an unfair decision, explain the fact in writing and apply for challenge (Article 13(1)); where a person subject to disciplinary action has an application for challenge, the person in receipt of the application for challenge shall not participate in the resolution (Article 13(2)); on the other hand, at least 2/3 of the incumbent members are present and with the consent of a majority of members present.

(Article 14, Section 2).

The application for challenge is originally against each individual disciplinary member, and the resolution on the application for challenge is also separately required for each individual disciplinary member. Thus, even if there are several applications for challenge against a disciplinary member, the disciplinary member subject to the application cannot participate only in the resolution on the member himself/herself, and may participate in the resolution on the other person. However, if the reason for challenge arises from common causes, not only the resolution on the member himself/herself but also the resolution on

Meanwhile, in cases where a person subject to disciplinary action cannot form the disciplinary committee by simultaneously applying for a challenge against all or most of the disciplinary members, or makes the decision of the disciplinary committee impossible, or where it is evident that the request for challenge is for the purpose of delaying disciplinary proceedings, etc., such request for challenge itself is inappropriate, and in such cases, it cannot be deemed that the member subject to the request for challenge is prohibited from participating in the decision on challenge.

Supreme Court Decision 209No. 30 Decided January 30, 2009