Aju University President (Law Firm Na, Attorney Lee Na-soo, Counsel for plaintiff-appellant)

Special Committee on the Examination of Teachers' Petitions (Law Firm Hongap, Attorney Kim Young-ok, Counsel for defendant-appellant)

Intervenor joining the Defendant

May 6, 2008

Seoul Administrative Court Decision 2006Guhap31471 Decided August 29, 2007

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. The total cost of the lawsuit shall be borne by the Plaintiff, including the cost of supplementary participation.

The judgment of the court of first instance is revoked, and the decision of revocation of revocation of rejection of reappointment made by the defendant on June 15, 2006 between the plaintiff and the defendant joining the defendant on June 15, 2006 is revoked.

1. Basic facts

The following facts may be acknowledged if there is no dispute between the parties, or if the purport of Gap evidence 1-1, 2, and 4-1, 2, 3, 5, and 6-1 through 4 is shown in the whole statement, and there is no counter-proof.

A. The school juristic person (hereinafter “Treatment Institute”) was established on March 29, 197 and is under the jurisdiction of the school juristic person establishing and operating the Giju University located in Suwon-gu, Suwon-si. The Plaintiff is appointed by the president of the board of directors following a resolution of the board of directors, as a person in charge of personnel and administration of the Giju University, and as a full-time lecturer or higher, with the consent of the board of directors of the Kiju Institute of Health and Welfare, and as a vice president or a vice president.

B. The Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) was newly appointed as a full-time lecturer at Aju University’s clinicalology course at Aju University on March 1, 1998, and was reappointed as a full-time lecturer on March 1, 1999.

C. On February 28, 2001, the Plaintiff rendered a disposition not to re-appoint the Intervenor on the ground that the Intervenor falls short of the criteria for evaluation of fixed-term appointment as a result of the review of reappointment (hereinafter “instant refusal disposition”).

D. Upon the enactment of the fixed-term appointment system, the intervenor filed a claim with the defendant for the revocation of the disposition rejecting the reappointment of the case on February 22, 2006, when the Special Act for the Remedy of the Exclusion from Appointment of University Faculty (hereinafter “Special Act”) was enacted on July 13, 2005 and enforced on October 14 of the same year to give the intervenor an opportunity to review whether the decision to decline the reappointment of the university faculty was made in an unlawful or unjust manner after the adoption of the fixed-term appointment system, and on June 15, 2006, the defendant could be involved in the evaluators because the criteria for evaluating the fixed-term appointment of the Aju University were not objective, and the plaintiff accepted the intervenor's claim on the ground that a part of the intervenor's evaluation is unfair, and the plaintiff revoked the reappointment as the intervenor on February 28, 2001 (hereinafter “instant decision”).

2. Whether the lawsuit of this case is lawful

A. The plaintiff's assertion

The plaintiff asserted that the plaintiff sought revocation of the disposition rejecting the reappointment of this case against the plaintiff, and that the defendant accepted the plaintiff's claim and ordered revocation of the disposition rejecting the reappointment of this case. Thus, the plaintiff asserted that the plaintiff sought revocation of the disposition rejecting the reappointment of this case against the defendant.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

(1) First, as to whether the plaintiff has a capacity to be a party, only a person with the capacity to be a party in civil procedure can be a plaintiff in an appeal litigation, and the plaintiff, which is an institution of school foundation, cannot be a plaintiff in the appeal litigation of this case due to lack of party ability.

(2) Furthermore, Article 10(2) of the Special Act provides that the provisions of Article 10(3) of the Special Act on the Improvement of Teachers’ Status (hereinafter “Special Act”) shall apply mutatis mutandis to the determination of the Committee. Article 10(3) of the Teachers’ Status Act provides that a party, such as a teacher or an educational foundation or an operator of a private school under Article 2 of the Private School Act, may file a lawsuit as prescribed by the Administrative Litigation Act within 90 days from the date of receipt of the written decision, with respect to the decision of the Committee. Article 2(3) of the Private School Act provides that a private school manager is defined as a juristic person (excluding a school juristic person) or a private school under the Early Childhood Education Act, the Elementary and Secondary Education Act, the Higher Education Act, and the Private School Act.

Meanwhile, Article 10(3) of the above Act provides that a person eligible to file a lawsuit as “parties, such as teachers, school foundations, or private school managers,” and in light of the purport of the provision, the scope of the above parties is limited to “school teachers, school foundations, or private school managers,” and it is interpreted that the same does not include the Plaintiff’s head

In addition, the Defendant’s disposition of this case is an administrative disposition on legal disputes surrounding the disposition of decline of reappointment between an educational foundation and an intervenor who is a teacher, even though the respondent of the decision is the Plaintiff, the formation of legal relations based on its formation power is between the educational foundation that is a party to the legal relations under private law and the intervenor. Although the decision of this case was made against the Plaintiff, it should be deemed that the decision of this case was made with respect to the medical institute that is a party to the dispute arising in the legal relations with the intervenor who is a teacher, and therefore, the revocation lawsuit seeking the revocation of the decision of this case can only be deemed to have been instituted.

If so, even if the Plaintiff had the capacity to be a party, the instant lawsuit is unlawful as it was brought by a person without standing to be a party.

3. Conclusion

Therefore, the lawsuit of this case shall be dismissed in one parent, and the judgment of the court of first instance, which has different conclusions, is unfair, so it shall be revoked, and the lawsuit of this case shall be dismissed, and it is so decided as per Disposition.

[Attachment]

Judges Jeong Ji-hee (Presiding Judge)