Park Chang-sik (Law Firm Anntain, Attorneys Ansan Jung-gu et al., Counsel for the plaintiff-appellant)

Basic Institute of Education for School Foundation (Law Firm Sang-chul, Attorneys Lee Sung-mun et al., Counsel for the plaintiff-appellant)

May 27, 2005

Seoul Western District Court Decision 2003Gahap3706 Delivered on November 17, 2004

1. Revocation of the first instance judgment.

2. The defendant's dismissal against the plaintiff on February 21, 2003 confirms that it is null and void.

3. The defendant shall pay to the plaintiff 16,50,000 won with 20% interest per annum from February 1, 2004 to the day of complete payment.

4. All costs of the lawsuit are borne by the Defendant.

5. Paragraph 3 can be provisionally executed.

The decision is as follows (The plaintiff primarily changed the claim of Paragraph 2 of the Disposition and Paragraph 3 of the Order to simply combine the claim of Paragraph 2 and Paragraph 3 of the Order in the trial).

1. Basic facts

A. On July 16, 1997, the Defendant obtained the establishment authorization from the Ministry of Education and Human Resources Development on November 20, 2002 for the purpose of opening the school foundation established on July 31, 1997, and opening the school on March 1, 2003.

B. The defendant's articles of incorporation

The articles of incorporation of the defendant related to this case for which the plaintiff seeks confirmation of invalidity of dismissal are as follows.

Article 35 (Dismissal)

(2) Teachers other than the head of a school shall be appointed by the chairperson upon a resolution of the board of directors on the recommendation of the principal after deliberation by the personnel committee: Provided, That associate professors, assistant professors, and full-time instructors may be appointed for a specified period of appointment as follows:

1. Professor 7 years, 2. Associate professor 5 years, 3. Assistant professor 3. 4. 2 years, 5. Teaching Assistant 1 year;

(3) A position of the president of a university or college shall be assigned to the position of the president at the proposal of the dean.

Article 42 (Prohibition of Temporary Retirement, Dismissal, etc. Contrary to Intention)

(1) No teacher shall be subject to any unfair disposition, such as a leave of absence or dismissal from office, against his/her will, unless he/she is subject to a sentence of punishment, disciplinary action, or cause prescribed by the Private School Act: Provided, That this shall not apply where he/she becomes an abolished position or a teacher due

(2) No teacher shall be released from office on the recommendation.

Article 45 (Functions of Personnel Committee)

(1) The personnel committee shall deliberate on the following matters:

1. Matters concerning consent to appointment and dismissal when the dean intends to appoint and dismiss professors, associate professors, assistant professors, full-time instructors, and teaching assistants;

Article 46 (Organization of Personnel Committee)

(1) The personnel committee for universities shall be comprised of five teachers appointed by the dean of a university.

Article 57 (Notification of Grounds for Request for Disciplinary Decision) Where any person who has authority to appoint teachers requests a disciplinary decision on a teacher, he/she shall send an explanatory note stating the grounds for the disciplinary decision to the person subject to disciplinary

Article 58 (Fact-Finding and Stating Opinions)

(1) In examining a disciplinary case, the Teachers Disciplinary Committee shall investigate the truth and hear statements of the person in question before making a decision on disciplinary action.

Article 59 (Decisions on Disciplinary Action)

(1) A resolution on disciplinary action shall be taken in the presence of not less than two thirds of the incumbent members and with the concurrent vote of a majority

(2) When the teachers' disciplinary committee examines a disciplinary case and decides on disciplinary action, it shall prepare a resolution on disciplinary action stating the order and reasons therefor and notify the appointing authority thereof.

(3) When an appointing authority receives notification under paragraph (2), he/she shall take disciplinary measures according to the details of the resolution within seven days from the date of receipt of such notification. In such cases, if the appointing authority is a corporation, he/she shall delegate the

(4) The disciplinary authority shall deliver a written decision specifying the grounds for disciplinary action to the teacher concerned.

C. On January 10, 2003, the defendant held a board of directors and decided to organize a teachers' personnel committee as a temporary officer until it is possible to organize the teachers' personnel committee as a member of the teachers' personnel committee. On the same day, the defendant held a teachers' personnel committee composed of the above members, deliberated on the support documents of 32 teachers' support persons of the Seongdong-gu University, and selected 21 persons including the plaintiff, and decided to receive the results of the interview from the chief director and the chief director to the teachers' personnel committee and then send a written consent for appointment to the appointment-recommendation authority.

D. On January 14, 2003, the defendant's chief director of Egymna and Geyang, the president of Egymna University, interview with 21 persons including the plaintiff on January 14, 2003. On January 15, 2003, the defendant's personnel committee of Egymna, reported the result of interview with 21 persons who are candidates for the appointment of teachers. On January 15, 2003, the defendant's personnel committee of Egymna selected 12 persons including the plaintiff among the above 21 persons.

E. After that, on January 17, 2003, the president of the Seongdong-gu University and the Plaintiff entered into a contract for appointment (Evidence A2) with the term of contract from February 1, 2003 to January 31, 2004, setting the Plaintiff as full-time professor of the missionary work as KRW 18 million. On the same day, the Plaintiff prepared and submitted to the Plaintiff a written pledge (Evidence B 9-1) stating that the Plaintiff will faithfully perform his duties as teaching staff and observe the Defendant’s education policy, and the Plaintiff participated in the original session from February 3, 2003 to June 6, 200, and introduced the Plaintiff to the Defendant as a new professor on his personal information from the original session from February 1 to 31, 2004, the Plaintiff was assigned to the Plaintiff on February 20, 2003, and the Plaintiff was assigned to the Plaintiff on February 24, 2003, to the Plaintiff’s new 3rd Research Center.

F. Meanwhile, on the other hand, on February 2003, the Plaintiff and some employees of the first instance court began to conflict with the president of the Defendant and the president of the Seongdong-gu University, such as requesting a police officer and the president to correct private school expenses. During that process, the literature officer entered the president’s office, along with employees, arrested the president as if he/she had a background of power, and threatened the Plaintiff, along with the literature clerk, with the Defendant and the president, as if he/she had a background of power.

G. After that, on February 19, 2003, the defendant entered into an appointment contract as mentioned in the above paragraph (e) at the teachers' personnel committee and decided not to select the plaintiff to be assigned as a professor. However, as a professor of missionary work, the defendant selected the Kim Hong and Roy H. Beadle, social welfare professor as a professor of social welfare department, and then submitted written consent to the appointment of the above four persons to the appointment appointment authority.

H. In addition, on February 21, 2003, the defendant notified the plaintiff on February 21, 2003 that he was not selected as a professor at the school. On February 25, 2003, the defendant held a board of directors on February 25, 2003, and the plaintiff and the head of the literature caused school problems. However, the plaintiff decided to pay 1.5 million won as consolation money in consideration of "the plaintiff expected to be selected at the final deliberation unless there is any special defect after the selection from the second deliberation, and prepared to the school, etc.", and transferred 1.5 million won to the plaintiff on March 3, 2003, in the interest bank account number under the name of the plaintiff.

I. Meanwhile, the defendant's board of directors dated February 25, 2003 decided to appoint four persons as full-time instructors as stated in paragraph (g) above, which was recommended to be appointed by the president of the Seongdong National University. However, the above four persons was not prepared, and when the defendant appointed or dismissed teachers, he did not report the appointment of the above four persons to the Minister of Education and Human Resources Development within seven days from the date of appointment or dismissal to the Minister of Education and Human Resources Development.

[Reasons for Recognition: Facts without dispute; Gap evidence 2, 3, 5, 7, 8; evidence No. 9-1 through 4; Eul evidence No. 2, 3; evidence No. 7; evidence No. 1 through 3; Eul evidence No. 8; evidence No. 9-1; Eul evidence No. 10 through 13; testimony or video of the witness of the first instance trial; fact-finding with the witness of the first instance trial; fact-finding with the Ministry of Education and Human Resources Development (the president of the Korean University Education Council); fact-finding with the witness of the first instance trial; purport of the whole pleadings];

2. The assertion and judgment

A. Judgment on confirmation of invalidity of dismissal

(1) Determination on this safety defense

(A) The argument

On February 21, 2003, the plaintiff asserted that he was dismissed from the defendant without a legitimate procedure or any justifiable reason, and that the plaintiff sought a confirmation of invalidity of dismissal, the defendant asserts that this part of the plaintiff's lawsuit is unlawful, since the plaintiff's contract term under the contract for appointment has already expired from February 1, 2003 to January 31, 2004, since it is the plaintiff's contract term under the contract for appointment has already expired.

(B) Determination

Even in the past legal relations, if the current rights or legal status have been affected by the current legal status, and if it is recognized as a valid and appropriate means to eliminate risks or apprehensions with respect to the current rights or legal status, the action for confirmation of such legal relations shall be deemed to have an immediate final and conclusive interest (see Supreme Court Decision 92Da40587, Jul. 27, 1993). In light of Article 33(1)8 of the State Public Officials Act and Article 57 of the Private School Act, a teacher must be treated as a disqualified person who cannot be appointed as a public official or teacher for three years from the date of the disposition for dismissal due to the dismissal of a teacher, and Article 53-2(4) through (6) of the Private School Act provides that the person who has the authority to appoint and dismiss the teacher shall be reappointed after deliberation by the teachers' personnel committee, i.e., the plaintiff claiming that he was dismissed, whose appointment period has expired, shall not be deemed to have a legitimate interest in the defendant's decision to nullify the appointment period after 90.

(2) Judgment on the merits

(A) The party's assertion

1) The plaintiff, on January 17, 2003, was appointed as the defendant's teacher on or around January 17, 2003, and was dismissed from the defendant on February 21, 2003 without legitimate procedures or justifiable grounds, the defendant's dismissal of the plaintiff is invalid as there is no justifiable ground.

2) The defendant asserts that the plaintiff submitted documents necessary for the deliberation of appointment, such as a written appointment contract and a written oath, and that he was disqualified during the final deliberation process, and that he was not appointed as the defendant's teacher.

(B) Determination

1) The contract for appointment of the teacher of a private school is made according to the procedure prescribed in the Private School Act, but its legal nature is not different from that of the above private school. According to Article 53-2(1)1 and (2) of the Private School Act, the teacher of a school is appointed or dismissed by the relevant school foundation or the manager of a private school. However, the right to appoint the teacher of a college may be delegated to the president and the principal of the relevant school as prescribed by the articles of incorporation. According to the defendant's articles of incorporation as seen above, it is reasonable to appoint the plaintiff as the president upon the recommendation of the board of directors of the relevant school. The defendant's 20th executive officer and the president of the 2th executive officer of the 2nd executive officer of the 2nd executive officer of the 2nd executive officer of the 3nd executive officer of the 2nd executive officer of the 2nd executive officer of the 3nd executive officer of the 2nd executive officer of the 2nd executive officer of the 2nd executive officer of the 3rd executive officer.

2) Therefore, the dismissal of the defendant on February 21, 2003 against the plaintiff on February 21, 2003 is null and void since it was conducted without a lawful disciplinary procedure or a resolution, and as long as the defendant contests this, the plaintiff has a benefit to seek confirmation. Thus, the plaintiff's assertion is

B. Determination on the claim for wages

As seen earlier, since the Defendant was dismissed without a lawful disciplinary procedure or resolution and the Plaintiff was unable to provide the Plaintiff with labor, the Defendant is obligated to pay the Plaintiff wages up to January 31, 2004 from the day following the date of the dismissal to the day of the last day of the appointment contract. However, as seen earlier, the Defendant paid the Plaintiff the amount of KRW 1.5 million out of the amount of wages during the appointment contract period of KRW 18 million (18 million - 1.5 million) and damages for delay calculated at a rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from February 1, 2004 to the day of full payment, as sought by the Plaintiff.

3. Conclusion

If so, the plaintiff's claim to confirm the invalidity of dismissal and the claim to pay wages are all reasonable, and the judgment of the court of first instance is unfair. Thus, the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked. On February 21, 2003, the defendant confirmed that dismissal against the plaintiff is null and void, and ordered the defendant to pay the above money. It is so decided as per Disposition.

Judges Lee Jin-sung (Presiding Judge)