[1] The subject of the Special Act on the Relief of Persons Dissipant to the Appointment System for University Faculty Members and the subject of the Private School Act and its contents

[2] Meaning of “Dismissal” under Article 53-2(1)1 of the Private School Act and whether in the case of a teacher appointed for a specified period, the status of the teacher shall be lost when the said period expires (affirmative in principle)

[3] The case holding that the rejection of reappointment is not unlawful in a case where a school foundation has not re-appointed a teacher whose appointment period expires for a two-year period after deliberation by the teachers' personnel committee, by comprehensively taking into account the results of the evaluation of lectures, the opinions of associate professors, the contents of application for the appointment of assistant instructors and the head

[1] Article 53-2 (3) through (8) of the Private School Act provides for the procedure of ex post facto remedy for the decision of refusal of reappointment as a special law aimed at protecting and remedying the rights and interests of the university faculty members unfairly excluded from reappointment by offering the opportunity to review the reappointment to the university faculty members excluded from reappointment before the enforcement of the Private School Act as amended by Act No. 7352 of January 27, 2005. Meanwhile, Article 53-2 (3) through (8) of the Private School Act provides for the procedure and criteria for the prior review of the reappointment of the university faculty members whose term of appointment expires after January 27, 2005, since the above special law and the above Private School Act provide for the procedure and criteria for the examination of the reappointment of the university faculty members whose term of appointment expires after the enforcement date of the Act, each of

[2] "Appointment and dismissal of a teacher" required by a resolution of the board of directors under Article 53-2 (1) 1 of the Private School Act means dismissal and dismissal against his/her will. Meanwhile, the term term appointment system itself means dismissal and dismissal from office, i.e., ex officio dismissal. On the other hand, since the term appointment system itself is constitutional, a teacher appointed for a specified term shall lose his/her status as a teacher upon the expiration of his/her term of appointment unless there are special circumstances, such as the articles of association, personnel regulations,

[3] The case holding that the rejection of reappointment is not unlawful on the ground that it cannot be deemed that the results of the lecture evaluation, the opinion of the faculty members, the opinion of the faculty members, and the contents of the applications for coal, etc. are considered as one element of comprehensive evaluation in the review of reappointment, in a case where a school foundation did not re-appointed a teacher whose appointment period expires for two years after deliberation by the teachers' personnel committee

[1] Article 53-2 of the Private School Act, Article 1 and Article 2 subparagraph 2 of the Special Act on the Relief of Persons Disqualified from Appointment of University Faculty Members / [2] Article 53-2 (1) 1 and (3) of the Private School Act / [3] Article 7 of the Special Act on the Relief of Persons Disqualified from Appointment of University Faculty Members

[2] Supreme Court Decision 2005Da62891 Decided January 26, 2006, Supreme Court Decision 2005Da16041 Decided July 6, 2006

Plaintiff

Teachers' Appeals Review Committee (Law Firm CSS, Attorneys Kim Shin-young, Counsel for defendant-appellant)

Intervenor (Law Firm CSS, Attorney Kim Shin-young, Counsel for defendant-appellant)

Seoul High Court Decision 2006Nu25454 decided July 25, 2007

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Acts applicable to this case

Article 53-2(3) through (8) of the Special Act on the Relief of Persons Disqualified for the Appointment of University Faculty Members (hereinafter “Special Act on Remedy”) provides for ex post facto relief procedures for a decision to reject the reappointment as a special law aimed at protecting and remedying the rights and interests of the university faculty unfairly excluded from reappointment by granting the university faculty members an opportunity to review their reappointment before the enforcement of the Private School Act (amended by Act No. 7352, Jan. 27, 2005; hereinafter “Revised Private School Act”). On the other hand, Article 53-2(3) through (8) of the amended Private School Act provides for the criteria for the prior procedure and examination of the reappointment for the university faculty members whose appointment period expires after January 27, 2005, and thus, the Special Act on Remedies and the amended Private School Act provides different subject matters and regulations.

According to the records, the plaintiff excluded from the examination for reappointment on February 28, 2003 upon the expiration of the term of appointment, and filed a petition for reexamination for reexamination of reappointment to the defendant pursuant to Article 4 of the Special Relief Act, and the defendant filed the lawsuit of this case seeking revocation of the decision to dismiss the petition pursuant to Article 8 of the same Act.

Therefore, even though a separate lawsuit filed by the plaintiff against the defendant joining the defendant (hereinafter referred to as "the intervenor") for confirmation of the status of professor was amended by Act No. 5274 of Jan. 13, 1997, and was amended by Act No. 6004 of Aug. 31, 1999), the Constitutional Court's decision of inconsistency with the Constitution as to the main sentence of Article 53-2 (3) of the former Private School Act (amended by Act No. 6004 of Aug. 31, 1999) becomes an issue as to the unconstitutionality of the pertinent provision at the time of the decision of inconsistency with the Constitution as to Dec. 18, 2003, and the above decision of inconsistency with the Constitution as to the pertinent provision has been pending before the court, the Special Act on Remedies applies to the lawsuit of this case

We affirm the judgment of the court below to the same purport. Contrary to the allegations in the grounds of appeal, we do not err by misapprehending the legal principles on the laws

2. As to the allegation of omission of judgment

A. Omission of determination as to the omission of prior procedures

As seen earlier, since the amended Private School Act does not apply to this case, the argument that the amendment did not undergo prior procedures under the amended Private School Act is without merit, and there is no further need to determine. Moreover, since the Special Act on Remedy applicable to this case does not include the criteria for re-examination of reappointment, the claim that the refusal of re-election of this case is unlawful on the ground that the prior procedures for re-examination of reappointment did not provide an opportunity to explain, which

Therefore, even though the court below did not determine as to the plaintiff's assertion that the refusal of reappointment of this case was made without giving an opportunity to vindicate under Article 4 (3) of the Guidelines for the Appointment of University Faculty Members on December 31, 2001 (hereinafter "the Guidelines for the Appointment of University Faculty Members") and without giving an opportunity to state opinion under Article 53-2 (7) of the amended Private School Act, it does not affect the conclusion of the judgment, and thus, it does not constitute grounds for reversal.

B. Omission of determination on the lack of a board of directors’ determination

Article 53-2 (1) 1 of the Private School Act and Article 43 of the Articles of Incorporation of the Intervenor refers to the appointment and dismissal of a teacher who is required by a resolution of the board of directors under Article 53-2 (1) 1 of the Private School Act. The dismissal of a teacher refers to dismissal against his/her will, i.e., ex officio dismissal (see Supreme Court Decision 2005Da62891, Jan. 26, 2006). Meanwhile, since the fixed-term appointment system itself is constitutional, a teacher appointed for a specified period is subject to the constitutionality of the system, and barring special circumstances, such as the compulsory appointment of the articles of incorporation or the personnel management agreement or the renewal of the employment contract (see Supreme Court Decision 2005Da16041, Jul. 6, 20

In this case where there is no such special circumstance, the plaintiff loses his status as a teacher due to the expiration of his term of appointment, and the plaintiff who loses his status as a teacher due to the expiration of his term of appointment is not separately required to be dismissed by a resolution of the board of directors. Therefore, it is not affected by the validity of the refusal of reappointment on the ground that the intervenor refused the reappointment of the plaintiff by a resolution of the board of directors and did not

Therefore, even if the court below did not decide on the plaintiff's assertion that the refusal of reappointment of this case is null and void due to lack of a resolution of the board of directors, such mistake does not affect the conclusion of the judgment, and thus, it cannot be viewed as a ground

3. As to the legitimacy of the grounds for refusal of reappointment

A. According to the judgment of the first instance as cited by the court below and the records, the following facts are recognized.

(1) On December 26, 2002, when the Plaintiff’s two-year employment period expires, the Intervenor’s Intervenor decided that the Plaintiff should not be reappointed on December 26, 2002 by considering the following factors: (a) the 14 members registered with the Plaintiff, among the 14 members registered with the Plaintiff, 13 members were required to examine whether to renew the contract by taking into account the results of the evaluation of the Plaintiff’s teaching service, the results of the evaluation of lectures, and the opinions of major professors. As a result, the achievement evaluation score satisfied the standard values; (b) the evaluation score in the research sector fell short of the standard values; (c) the average of the three-year term beginning from the first semester to the first semester in 2001, the average of the three-year employment period from the first semester in the year to the first semester in the year in 2002 (57th among the 61 members); and (d) the president and the president did not want to re-contract with the Plaintiff on March 27, 20002.

(2) Article 52(2) of the Articles of the Defendant Intervenor’s Articles of incorporation provides that the following shall be taken into account in determining the reappointment of a faculty member for whom the term of appointment expires. Article 52(2) of the said Articles provides that “The results of research and academic conferences in the specialized field,” “the student’s ability and performance in his/her research and technical field,” “the student’s ability and performance in his/her research and life guidance,” and Article 52(2) of the said Articles provides that “the compliance with the education-related Acts and subordinate statutes and the maintenance of his/her dignity as a faculty member and other teacher.” Meanwhile, the Ministry of Education and Human Resources Development enacted on December 31, 201 by the “Guidelines for the Appointment of University Faculty Members in Office” provides that the said

B. The lower court determined as follows and concluded that the Intervenor’s Intervenor could not be deemed to have made a mistake that the Intervenor would not be reappointed to the Plaintiff.

(1) In relation to the Plaintiff’s research performance evaluation, it is recognized that the Defendant’s Intervenor changed the evaluation of research performance for only three semesters, excluding the last semester, at the time of the Plaintiff’s re-election examination for the Plaintiff. However, the process was derived from the examination of re-election before submission of the last semester prior to the expiration of the term of appointment in accordance with the “Guidelines for the Appointment of University Faculty in Office” of the Ministry of Education and Human Resources Development to notify the pertinent university faculty members of whether he/she is reappointed prior to the expiration of the term of appointment, and the evaluation of the remainder of the term of appointment excluding the last semester was conducted for the Plaintiff’s last semester after May 2002, not for the first time by the Plaintiff, but for the latter half of the second half of the year in which the Plaintiff could have been predicted to a certain extent. Therefore, it is obvious that the Plaintiff’s examination of research performance for only three semesters was conducted in violation of the Articles of incorporation and the Plaintiff’s improper reasons, such as the Defendant Intervenor’s articles of incorporation.

(2) Furthermore, in relation to the lecture evaluation of the Plaintiff, there may be room for any subjective elements to intervene in the lecture evaluation of the Plaintiff, and there may be differences depending on the type of the subject, the major field of study, the number of students by professor, and the number of students by lecture. However, Article 52(2)2 of the Articles of Incorporation of the Defendant Intervenor’s Intervenor provides that “the number of students’ professors, professors, and their ability and performance in their guidance for life” as one of the criteria for the examination of reappointment, and stipulates matters concerning the student education as the criteria for the examination prescribed in Article 7 of the Special Act on the Remedies for Remedi. applicable to the reappointment of the instant case. However, in examining the matters concerning the student education, the results of the lecture evaluation are only one important material. In light of the fact that the examination of the matters concerning the student education is conducted by many universities other than the ○○ University operated by the Defendant Intervenor, it cannot be deemed that the results of the lecture evaluation against the Plaintiff lack objective validity.

(3) In addition, in relation to the opinions of the faculty members of the same department, there is no express provision that provides that the opinions of the faculty members of the faculty members are one element of the comprehensive evaluation in the examination for reappointment, that the opinions of the faculty members may be affected by their relationship of friendship, and that the subjective intent of the evaluation members may be reflected. Thus, if the opinions of the faculty members of the faculty are the only element of the examination for reappointment, there is room to deem that the opinions of the faculty members of the faculty members of the faculty members were justifiable and have not been examined for reappointment based on objective reasons. However, in the case of the Plaintiff, the opinion of the faculty members of the faculty in addition to other evaluation elements of the reappointment is limited to one evaluation element, and there is no evidence that the opinions of the faculty members of the faculty members of the faculty were made according to the fact distortion, exaggeration, and false judgment. Accordingly, it cannot be

(4) Lastly, with respect to the submission of a petition by a teaching assistant and a student, the Plaintiff accepted the application as a truth without examining the facts about the contents of the application for coal in the chief of the night school, and accepted it as a reason for refusal of reappointment, and the application for the jointly signature between the teaching assistant and the staff was made by the teaching assistant with the teaching assistant in order to intentionally see the Plaintiff, and received the truth without examining the fact, distorted, or false facts. However, as to the application for coal in the name of the teaching assistant and the teaching assistant and the staff member submitted to the president of the ○○ University, the Plaintiff confirmed the contents of the application for coal in question against the students through counseling, etc., and the Defendant also attended and examined the relevant persons without attendance. However, the Plaintiff did not have an opportunity to be reappointed as one of the grounds for rejection of reappointment, in light of the contents of the application, the relationship between the Plaintiff and the teaching assistant and the testimony, etc., and the objective contents of the Intervenor’s refusal to provide guidance under Article 27(2) of the Special Act cannot be deemed as an objective reason for rejection of appointment.

(5) Ultimately, even if Defendant Intervenor’s Intervenor’s participation in the fourth semester is subject to the Plaintiff’s research performance evaluation, it cannot be said that Defendant Intervenor erred in excluding the Plaintiff’s reappointment, considering the following as a whole: (a) the evaluation result of lectures; (b) the opinion of the associate professor; and (c) the submission of written applications, etc.

C. In light of the records and relevant statutes, the above fact-finding and judgment of the court below are justified. There is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)