2011Confirmation of teacher status, 19532

Maap○

Busan Geum-gu 00 Dong

Attorney Seo-chul et al., Counsel for the defendant-appellant

○ ○ Private Teaching Institutes

Busan Geum-gu 00 Dong

Representative President fixed 00

Law Firm Jeong, Attorneys White-jin, and Park Poe-young, Counsel for defendant-appellant

April 18, 2012

May 9, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

It confirms that the support for the filing of a claim is in the position of ○○ High School teachers under the defendant's control.

1. Basic facts

The following facts are not disputed between the parties or may be acknowledged by considering the following facts in Gap evidence 1-2, Gap evidence 3 through 6, 10, Eul evidence 4-2, Eul evidence 5, 7, witness witness witness testimony of ○○○○.

A. On November 29, 2010, while the Plaintiff was employed by the Defendant as a teacher in charge of economic subjects at a high school of 0000 operated by the Defendant, the Plaintiff argued that the ○○○○○, a student of the said school, is too difficult to perform the economic subjects. The Plaintiff sent to the ○○○○○○ by e-mail a written draft of the draft written test of the economic subjects prepared to give questions on the end of the second semester, which was set up as an issue of the said 27 language examination, and the Plaintiff applied for the said 30 language examination conducted on December 9, 2010.

B. The Defendant referred the Plaintiff to the High School Teachers Disciplinary Committee on the ground of the leakage of the above examination problems, and the said teachers’ disciplinary committee decided on February 23, 201 to dismiss the Plaintiff on March 28, 2011, but the Defendant made a decision on February 201 to dismiss the Plaintiff. On March 4, 2011, the Plaintiff filed a petition for review with the Appeal Committee for Teachers seeking revocation of the above dismissal on the ground of procedural defect, and the Appeal Committee for Teachers filed a petition for review with the Appeal Committee for Teachers on March 4, 2011, and on April 18, 2011, the Appeal Committee for Teachers decided to revoke the Defendant’s dismissal of the Plaintiff on the ground that it violated Article 66(2) of the Private School Act, which provides that “The person who has the authority to appoint and dismiss teachers, must take the disciplinary action according to the resolution of the Appeal Committee,” and notified the Defendant on May 3, 201

D. On May 19, 201, the Plaintiff submitted to the Defendant a written request for cooperation (hereinafter referred to as “written request for cooperation”) stating that the Plaintiff would be subject to a three-month disciplinary measure of suspension from office upon the expiration of the period of suspension from office (from March 1, 2011 to May 31, 201) and the period of sick (from June 1, 2011 to July 14, 2011) due to his/her no idea that he/she would return to a religious order, and that he/she would be subject to a three-month disciplinary measure of suspension from office according to the decision of the Appeal Committee for Teachers (hereinafter referred to as “written request for suspension from office”), and submitted to the Defendant on May 23, 2011, resignation to the effect that he/she will resign from office as of August 31, 2011 (hereinafter referred to as “instant written resignation”).

2. The parties' assertion and judgment

A. The plaintiff's assertion

1) The Defendant’s act of leakage of examination questions to the Plaintiff is reported to the press, is removed through re-regulation, or the teachers attending the teachers’ disciplinary committee would be disadvantaged. The Plaintiff submitted the instant written request for cooperation and a written resignation at the request of the Defendant. As such, ① The Defendant’s disposition of dismissal of the Plaintiff as a member of the teachers’ disciplinary committee is null and void as the Defendant’s actual dismissal does not have any justifiable reason, or ② the declaration of intention by coercion of resignation is revoked by the delivery of a duplicate of the complaint of this case.

2) Pursuant to Article 53-2 (1) 1 of the Private School Act, even if the plaintiff's resignation was submitted, the defendant may dismiss the plaintiff only through a resolution of the board of directors, but there is no fact that the resolution of the board of directors was passed. Thus, the defendant's disposition to dismiss the plaintiff as a member is null and void.

3) On August 5, 2011 and August 18, 2011, the Plaintiff directly delivered ○○, the Defendant’s secretary general, or requested the return of the letter of resignation by telephone. ② The Plaintiff withdrawn his/her intention of resignation by sending the content-certified mail requesting the return of the letter of resignation on August 19, 2011 to the Defendant. Accordingly, the Defendant’s acceptance of resignation on August 19, 201 thereafter is null and void.

(b) Fact of recognition;

The following facts may be acknowledged by comprehensively considering the evidence No. 1-1, 2, 3 through 10, Eul evidence No. 2-1, 2, 3, and Eul evidence No. 4-1, 2, Eul evidence No. 5, 6, 7, Eul evidence No. 8-1, 2, and 3, the testimony of the witness O, and the whole purport of the pleadings:

1) On February 10, 2011, the Busan High Court rendered a judgment to the effect that a provisional director of a school juristic person appointed by the Minister of Education pursuant to the former Private School Act (amended by Act No. 7802, Dec. 29, 2005) is all null and void, on the grounds that there is no right to appoint a regular director, a provisional director of the school juristic person appointed by the Minister of Education pursuant to the said Act (amended by Act No. 7802, Dec. 29, 2005) was all null and void, and the said judgment became final and conclusive on March 1, 2011.

2) The Defendant did not correct a dismissal disposition against the Plaintiff on the ground that the said final judgment could not constitute a lawful board of directors due to the said final judgment, and accordingly, the Plaintiff did not work for the said school until the submission of the request for cooperation and the written resignation.

3) Upon the Plaintiff’s submission of the instant written request for cooperation, the Defendant, on May 20, 201, decided to hold a teachers’ personnel committee and accept the Plaintiff’s request for cooperation. On May 23, 2011, after receiving the written resignation from the Plaintiff, on May 23, 2011, issued a corrective order to change the period of suspension from office to three months for the Plaintiff’s dismissal. On May 27, 2011, the Plaintiff submitted sick family members to the Defendant as stipulated in the written request for cooperation on May 30, 201.

4) On August 5, 2011, the Plaintiff entered the issue of delivery or reinstatement. On August 18, 2011, the Plaintiff demanded the ○○○○○ to request the return of his/her resignation by telephone, but he/she did not comply therewith. However, on August 19, 2011, the Plaintiff notified the Defendant that he/she withdrawn his/her intention of resignation by content-certified mail, and this reached the Defendant on August 22, 2011.

5) On August 19, 201, the Defendant cannot deliberate and make a resolution on the Plaintiff’s dismissal agenda due to the existence of the board of directors, on the grounds that it is impossible for the Defendant to deliberate and make a resolution on the Plaintiff’s dismissal agenda due to the Plaintiff’s absence of the board of directors, pursuant to Article 691 of the Civil Act, the Defendant approved the Plaintiff’s dismissal from office on August 31, 201, and reported the Plaintiff’s dismissal from office to the Superintendent of the Busan Metropolitan City Office of Education on the same day. On September 1, 2011, the Defendant notified the Plaintiff of the above dismissal from office. Meanwhile, on April 29, 2011, the Plaintiff was indicted for a charge of interference with duties due to the leakage of the examination problem and was sentenced to a judgment of conviction of KRW 5,000,000 from the Busan District Court’s Dong Branch on the grounds of unfair sentencing, but the Prosecutor appealed appealed on the grounds of unfair sentencing, but this judgment became final and conclusive on July 15, 2015.

1) Whether the declaration of intention to resign is substantial dismissal or coercion

As the Plaintiff’s resignation is submitted by the Defendant’s coercion, it would be practically dismissed, or constitutes a declaration of intention by coercion. The Plaintiff’s written evidence Nos. 2, 3, and 3 submitted by the Plaintiff is insufficient to acknowledge it, and there is no other evidence to acknowledge it. Rather, according to the above facts of recognition, the Plaintiff was under trial at the time of submission of the pertinent written resignation due to the prosecutor’s appeal on the grounds of unfair sentencing, who was sentenced to a judgment of conviction of a fine of KRW 5,00,000 on the grounds of the charge of obstruction of business due to leakage of examination problems, and the Plaintiff was under trial at the time of submission of the written resignation. The critical article about leakage of examination problems was reported to the press. Since the retirement age remains for two years, and it is unclear whether the Defendant could work at high school for three months due to the absence of the board of directors, the Plaintiff’s submission of the written resignation request based on the premise that the dismissal was changed to three months, and thus, the Plaintiff’s submission of the written resignation request in this case did not appear.

2) Whether the resolution of the board of directors is necessary

Article 53-2 (1) 1 of the Private School Act provides that teachers of various levels of schools shall be appointed and dismissed by a school juristic person and shall undergo a resolution by the board of directors on the recommendation of the principal of the school concerned. Since the above provision aims to ensure the appropriateness of appointment and dismissal of teachers by having the principal of the school and the board of directors participate in the appointment and dismissal of teachers of the school juristic person, it is reasonable to deem that appointment and dismissal of teachers of the school juristic person without going through the above procedures is null and void. Meanwhile, in light of the purport of Article 58 of the Private School Act, the term "election and dismissal" refers to dismissal and dismissal from office against the principal's will, i.e., dismissal from office, and dismissal from office means dismissal from office against the principal's will. Thus, in the case of dismissal from office from office from office without going through the above procedures, it cannot be deemed null and void

In light of the above legal principles, the fact that the Defendant approved the dismissal from office on August 19, 201 to the Plaintiff on August 19, 2011 is as seen earlier. Therefore, the Plaintiff’s assertion that the Defendant’s dismissal from office was void without the resolution of the board of directors when accepting the dismissal from office for the Plaintiff is without merit.

3) Whether the declaration of intention to resign is valid

A) The nature of the declaration of resignation

Whether an employee’s expression of intent to resign is a notice of termination of the pertinent employment contract or an employer’s subscription for termination of the agreement on employment contract ought to be determined by taking into account all the circumstances, including the details of the written resignation stating the employee’s expression of intent, the motive and circumstance leading up to the preparation and submission of the written resignation, and the situation after the submission of the written resignation (see, e.g., Supreme Court Decision 2007Da11668, Oct. 11, 2007). The expression of intent to resign is a notice of cancellation to the effect that the pertinent employment contract is terminated unless there are special circumstances (see, e.g., Supreme Court Decision 9Du8657, Sept. 5, 200). Considering the above facts of recognition, the Plaintiff’s critical public opinion as to the leakage of examination problems before the retirement age is 2 years, and the Plaintiff’s request to cooperate in the appellate court’s dismissal of the Plaintiff at the time of the cancellation of the pertinent employment contract and the Defendant’s request to cooperate in the dismissal of the Plaintiff.

B) Whether the withdrawal of resignation declaration is valid

In cases where a declaration of intention to resign falls under the cancellation notice, as long as an expression of intent to resign is reached by the employer who is notified of the termination of a labor contract, a worker may not withdraw his/her declaration of intention to resign without the employer’s consent (see, e.g., Supreme Court Decision 9Du8657, Sept. 5, 200

Even if the aforementioned facts and the following circumstances revealed, namely, ① the Plaintiff’s wish to resign was indicated on August 31, 201, the Plaintiff’s expression of intent to resign shall be deemed to have reached the Defendant around May 23, 201, when the instant resignation was submitted. ② Even if not, insofar as the Defendant accepted the Plaintiff’s resignation on August 19, 201, as long as it accepted the Plaintiff’s resignation on August 19, 201, the Plaintiff may not withdraw his/her resignation without the Defendant’s consent. However, considering the fact that the Plaintiff expressed his/her intention to withdraw or withdraw his/her resignation on August 5, 201, or that the Plaintiff sent his/her telephone communications with ○○ and ○○ on August 18, 2011, it is difficult to view that the Plaintiff’s intent to withdraw was rejected by the Defendant’s refusal to withdraw his/her resignation, the Defendant’s consent to the withdrawal of the Plaintiff’s resignation should not be deemed to have reached the Defendant’s request to have reached the Defendant’s retirement.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

The judge of the presiding judge;

Judge Doo

Judges Jeon Soo-hoon