[1] Criteria for dismissal of a teacher at the time of dismissal of a teacher due to the abolition of a class or department due to the abolition of a class or department at a private school

[2] In a case where there is no possibility that a teacher be avoided by means of issuing a transfer of position or a transfer of placement, etc. in light of the situation of a private school when a teacher is dismissed due to the closure of office or a removal of office due to the closure of office, whether it can be justified that a teacher did not undergo an examination procedure according to the dismissal criteria under Article 70(3) of the State Public Officials Act and Article 6

[1] Under the proviso of Article 56 (1) of the Private School Act on the ground that a teacher has been dismissed from office due to the abolition of class and department, it is necessary to determine whether to dismiss the teacher in accordance with reasonable and objective criteria from the perspective of guaranteeing the status of the teacher. Voluntary dismissal without complying therewith is a deviation from and abuse of discretion on the appointment and dismissal of the teacher. Article 70 (3) of the State Public Officials Act and Article 62 (3) of the Local Public Officials Act provide that "where a public official is dismissed on the ground that he/she has become a member of a class and department, the dismissal criteria should be determined in consideration of the form of appointment, job performance, job performance, ability to perform duties, disciplinary action, etc." In this context, “the dismissal criteria determined in consideration of the type of appointment, job performance, ability to take disciplinary action, etc.” can be deemed as specifically determining the contents of reasonable and objective criteria. As such, in a private school, where a teacher is dismissed from office due to abolition, etc., and ex officio dismissal, it is required to determine the dismissal criteria as much as possible.

[2] In the case of a national or public school, it is more likely that the State or a local government, which is the main body of teacher appointment, may avoid or minimize the dismissal of a teacher due to the abolition of a school, department or faculty, even if the faculty members were to be removed from office due to the abolition of a school, department or faculty. On the other hand, in the case of a private school, even if the faculty members were to be removed from office due to the abolition of a school, it is impossible to issue a new appointment due to the abolition of a school, and even if the faculty members were to be removed from office due to the abolition of a school, it is inevitable to dismiss a teacher without any particular defect in the teacher’s performance or ability. Therefore, even if the faculty members were to be removed from office upon the abolition of a private school, it shall be deemed that there is no possibility of removal from office due to the removal from office due to the removal from office due to the removal from office or replacement of another private school based on the objective standards, such as the removal from office or replacement of a new school.

[1] Article 56(1) of the Private School Act; Article 70(3) of the State Public Officials Act; Article 62(3) of the Local Public Officials Act / [2] Article 56(1) of the Private School Act; Article 70(3) of the State Public Officials Act; Article 62(3) of the Local Public Officials Act

Plaintiff (Law Firm Dongin, Attorneys Shin Dong-chul et al., Counsel for plaintiff-appellant)

Defendant School Foundation (Law Firm Squae, Attorneys Seo-Jon et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 2006Na8220 decided August 23, 2007

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Gwangju High Court. The Plaintiff’s appeal is dismissed.

1. As to the defendant's appeal

A. The judgment of the court below

In light of the adopted evidence, the court below determined that the defendant dismissed the plaintiff from office on February 28, 200, on the ground that the school juristic person establishing and operating the university (name omitted) was a full-time lecturer belonging to the International Tourism Department of the above university; the plaintiff was a full-time lecturer belonging to the International Tourism Department of the above university; the defendant adjusted the fixed number of students in 2001 and added the pertinent department in accordance with the "Guidelines for Adjustment of the Fixed Number of University Students" of the above university; the defendant dismissed the plaintiff from office under the proviso to Article 56 (1) of the Private School Act and Article 46 (1) of the Articles of incorporation of the above university; the defendant dismissed the plaintiff from office on the ground that the number of students in the International Tourism Department of the International Tourism Department of the above university was not less than 10 and it is difficult to operate the curriculum due to the lack of adequate new students necessary for the operation of the department; and that the above university president dismissed the plaintiff from office by an ex officio dismissal under Article 36 (1) of the Local Public Officials Act.

B. The judgment of this Court

However, this decision of the court below is not acceptable for the following reasons.

헌법 제31조 제6항 은 ‘교원의 지위에 관한 기본적인 사항은 법률로 정한다’고 규정하고 있고, 사립학교법 제56조 제1항 본문, 교육공무원법 제43조 제2항 및 교원지위향상을 위한 특별법 제6조 제1항 은 모두 “교원은 형의 선고ㆍ징계처분 또는 법률이 정하는 사유에 의하지 아니하고는 의사에 반하여 휴직ㆍ면직 등 불리한 처분을 받지 아니한다”는 취지로 규정하여 교원의 신분을 두텁게 보장하고 있으며, 사립학교법 제56조 제1항 단서는 “학급ㆍ학과의 개폐에 의하여 폐직이나 과원이 된 때”를 사립학교 교원의 직권면직사유로, 교육공무원법 제53조 제3항 , 제57조 제3항 , 국가공무원법 제70조 제1항 제3호 , 지방공무원법 제62조 제1항 제3호 는 “각급 학교에 있어서 학교ㆍ학과 또는 학부의 폐지 등에 의하여 폐직 또는 과원이 된 때”를 국ㆍ공립학교 교원의 직권면직사유로 각기 규정하고 있는바, 한편 공무원인 국ㆍ공립학교 교원에 대하여 적용되는 국가공무원법 제70조 제3항 , 지방공무원법 제62조 제3항 은 “폐직, 과원이 되었음을 이유로 공무원을 직권면직시킬 때에는 임용형태ㆍ업무실적ㆍ직무수행능력ㆍ징계처분사실 등을 고려하여 면직기준을 정하여야 한다”고 규정하고 있는데, 사립학교법에는 비록 이러한 내용을 규정한 조항은 없으나 사립학교에서 학급ㆍ학과의 폐지에 의해 폐직, 과원이 되었음을 이유로 교원을 직권면직함에 있어서도 교원의 신분보장이라는 관점에서 합리적이고 객관적인 기준과 근거에 따라 면직 여부를 결정함이 필요하고 이에 따르지 아니한 채 자의적으로 면직처분을 하는 것은 교원 임면에 관한 재량권을 일탈, 남용한 것으로 된다고 봄이 상당하며, 국가공무원법 제70조 제3항 , 지방공무원법 제62조 제3항 이 말하는 “임용형태ㆍ업무실적ㆍ직무수행능력ㆍ징계처분사실 등을 고려하여 정한 면직기준”이란 결국 합리적이고 객관적인 기준의 내용을 구체적으로 정한 것으로 볼 수 있으므로, 사립학교에서 폐과 등에 의한 폐직, 과원이 발생하여 교원을 직권면직함에 있어서도 위와 같은 면직기준을 정하고 그에 따라 면직대상자의 실적과 능력 등을 심사하여 별다른 하자가 없는 교원은 가급적 구제하는 조치가 요구된다고 볼 것이다.

However, in the case of a national or public school, it is more likely that the State or a local government, which is the subject of appointment of a teacher, may avoid or minimize the dismissal of a teacher due to the abolition of a school, department or faculty, even if the teacher is removed from office due to the abolition of a school, department or faculty. On the other hand, in the case of a private school, even if the teacher is removed from office due to the abolition of a school, there is no other school established and operated by the school foundation even if the teacher is removed from office, and it is impossible to issue a transfer due to the abolition of a school, and in the case of a private school, it is inevitable to dismiss the teacher without any particular defect in the teacher’s performance or ability. Thus, even if the teacher is removed from office at the time of the closure of a school, it is more reasonable and reasonable to dismiss the teacher due to the removal or transfer of another school, and the removal or transfer of another school foundation based on the aforementioned standards should be determined based on the objective dismissal or transfer of the teacher by analogy of the provisions of Article 70(3) of the State Public Officials Act and Article 62(3) of the Local Public Officials Act.

According to the records of this case, the defendant ex officio dismissed the plaintiff under the proviso of Article 56 (1) of the Private School Act on the ground that the international culture and tourism major of the International University was closed and the Plaintiff’s position as a full-time lecturer belonging to the major was abolished. In light of the above legal principles, the court below should have examined whether the plaintiff was appointed as a full-time lecturer at other university’s operation or as a full-time lecturer at the university’s other department of the university or not, or there is room for the plaintiff to be assigned with lectures related to the subject, and as a result, if it is acknowledged that there is a possibility of evading the dismissal of the plaintiff, the court below should have determined dismissal standards by considering the type of appointment, work performance, job performance, and disciplinary action, and determined dismissal by the defendant based on the above criteria, and determined dismissal by the defendant without examining the possibility of removal of the plaintiff from office by the plaintiff’s remaining dismissal by the defendant due to the dismissal or conversion of the plaintiff from office. Thus, the court below did not err by misapprehending the legal principles of Article 6 (2) of the Private School Act.

2. As to the Plaintiff’s appeal

The plaintiff did not submit a statement of grounds for appeal within the statutory period, and the petition of appeal filed by the plaintiff does not include the grounds for appeal.

3. Conclusion

Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiff's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)