[1] The case holding that the Act applicable to the rejection of reappointment of a teacher of a private university is a previous provision pursuant to Article 1 (1) and (2) of the Addenda to the Private School Act (amended by August 31, 199)

[2] Acts that apply to the scope of the retroactive effect of the decision of inconsistency with Constitution as to the main sentence of Article 53-2 (3) of the former Private School Act and the cases where such retroactive effect is affected (=the provisions of the current Private School Act where the constitutionality

[3] Whether a teacher of a private school appointed on a fixed-term basis and the term of appointment of which expires normally has the right to file an application for review of reappointment with the person who has the right to appoint and dismiss (affirmative), and whether there is a legal interest in seeking nullification of a decision to refuse the reappointment by the person

[4] Whether a teacher of a private school appointed as a fixed-term teacher loses his status due to the expiration of his term of appointment (affirmative with qualification)

[1] Article 53-2 (3) of the former Private School Act (amended by Act No. 6004 of Aug. 31, 1999); Article 53-2 (3) of the Private School Act; Article 53-2 (1) and (2) of the Addenda (amended by Act No. 531 of Aug. 31, 199); Article 47 of the Constitutional Court Act / [2] Article 53-2 (3) of the former Private School Act (amended by Act No. 6004 of Aug. 31, 199); Article 53-2 (3), (4), (5), (6), (7), and (8) of the Private School Act; Article 47 of the Addenda (amended by Act No. 6004 of Aug. 31, 199); Article 53-2 of the Private School Act; Article 250 of the Civil Procedure Act / [3] Article 53-2 of the Private School Act

[2] Supreme Court Decision 9Da3358 delivered on April 2, 2002 (Gong2002Sang, 1059) Supreme Court Decision 2002Da21882 Delivered on November 8, 2002 (Gong2003Sang, 29) Supreme Court Decision 2005Da37024 Delivered on March 24, 2006, Constitutional Court en banc Decision 2002HunBa14, 32 Delivered on December 18, 2003 (HunGong88) / [3/4] Supreme Court Decision 2003Da52647 Delivered on March 9, 206 (Gong206Sang, 569) / [3] Supreme Court Decision 2005Da376464 decided March 24, 2006

Quasi-Fuk Kim

Seoul High Court Decision 201Na1448 decided May 1, 201

Seoul High Court Decision 2003Na63205 delivered on February 16, 2005

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

We examine the grounds of appeal.

1. The judgment of the court below

As a whole, the lower court determined that the Plaintiff’s provision on March 1, 200 to the effect that the term of office of the Plaintiff is 2 years from March 1, 201 to February 28, 2003, which provides that the term of office of the Plaintiff shall be 3 years, and that the Plaintiff shall not be reappointed until the expiration of the term of office of the Plaintiff’s 14 members present at the Daom’s personnel committee. The lower court determined that the Plaintiff’s refusal to appoint the Plaintiff as new teachers on March 1, 2003, based on the revised provision on the premise that the former Act on the 19th anniversary of the expiration of the term of office of the Plaintiff’s new terms of office is unreasonable, since the provision on the 3rd National University’s new terms of office shall not be applied to the Plaintiff’s new terms of office, and that the amendment of the Act on the 19th Amendment to the Private School Act shall still be unconstitutional.

2. Judgment of party members

A. First of all, as to the judgment of the court below that the Act applied at the time of refusal of reappointment to the plaintiff is Article 53-2 (3) and (4) of the Private School Act (amended by Act No. 53-2 (4) of Aug. 31, 1999), the above amended Act shall enter into force, in principle, on the date of its promulgation, but the amended Act shall enter into force on Jan. 1, 2002, and Article 53-2 (3) of the Addenda (amended by Act No. 53-2 (3) of the Private School shall enter into force on Jan. 1, 200, and Article 53-2 (2) of the Addenda shall, notwithstanding the former provisions of Article 53-2 (3), provide that if a teacher is appointed for a specified period, the previous provisions shall not be deemed to apply to the decision of the court below on Feb. 28, 2003, on the premise that Article 53-2 (3) of the Addenda of the Private School Act shall not apply to this case.

B. Meanwhile, the Constitutional Court rendered a ruling of inconsistency with the Constitution as to the first sentence of Article 53-2(3) of the amended Private School Act, on January 13, 1997, on the ground that “A legislative person’s permission for fixed-term appointment cannot be deemed as unconstitutional in itself, but there is no supplementary provision on grounds of refusal of reappointment of objective criteria in relation to reappointment, grounds for refusal of reappointment of teachers, opportunity to state opinions, prior notification of refusal of reappointment, procedure for objection, etc., shall be contrary to the principle of legal status of teachers as stipulated in Article 31(6) of the Constitution.”

Accordingly, the Private School Act has been amended by Act No. 7352 on January 27, 2005 (hereinafter referred to as the "current Private School Act") in accordance with the purport of the above decision, and Article 53-2 of the current Private School Act shall allow the fixed-term appointment of private school teachers under the conditions as prescribed by the articles of incorporation (paragraph (3)). While the Private School Act permits the fixed-term appointment of such teachers, it shall provide that "the teachers of the college educational institution shall attend the examination of reappointment after the expiration of the term of appointment, and shall notify the fact that the term of appointment expires four months before the expiration of the term of appointment (paragraph (4)), and that the teachers who are notified of such appointment shall apply to the examination of reappointment from the date on which an application for reappointment is made by the Private School Act, and that the teachers who are subject to the examination of reappointment shall determine whether to be reappointed after the deliberation of the teachers' personnel committee, and shall notify the relevant teachers of such fact within two months before the expiration of the term of appointment.

As long as the Constitutional Court has made a decision of inconsistency with the Constitution as to any of the provisions of the law and has jurisdiction over the legislative discretion to revise or abolish the provisions of the law constitutionally, the legislative discretion and the scope of retroactive application depends on the legislative discretion as a matter of principle. However, considering the purport of the above decision of inconsistency with the Constitution as to the main sentence of Article 53-2(3) of the amended Private School Act as to January 13, 1997 or the specific norm control in the adjudication of inconsistency with the Constitution as to the above cases, at least the above decision of inconsistency with the Constitution as to the above cases and the cases pending in the court as to whether the above Article 53-2(3) of the amended Private School Act was unconstitutional or not at the time of the above decision of inconsistency with the Constitution as to January 13, 1997, the previous provisions of the law cannot be applied even if these cases are not included in the scope of transitional measures under Article 53-2(2) of the Addenda to the Private School Act, and the current provisions of the Private School Act as to be removed 2820.

According to the records and relevant Acts and subordinate statutes, the plaintiff argued as mentioned above on April 25, 2003 and brought the lawsuit in this case, and argued the validity of the legal provision that became the basis for the refusal of reappointment. The provisions that became the basis for the refusal of reappointment in this case under Article 2 of the Addenda of the amended Private School Act on August 31, 1999, which was enforced at the time when the term of appointment of the plaintiff expired, were the former part of Article 53-2 (3) of the amended Private School Act on January 13, 1997. The Constitutional Court in this case during the trial of the original court, as mentioned above, may recognize the fact that Article 53-2 (3) of the amended Private School Act on January 13, 1997, became unconstitutional. Thus, in light of the above legal principles, this case is subject to the unconstitutionality of Article 53-2 (3) of the amended Private School Act as of January 13, 1997.

C. Meanwhile, as seen earlier, Article 53-2 of the current Private School Act explicitly provides that the duty of prior notification of whether the person who has the authority to appoint and dismiss applies for review of reappointment, the right to apply for review of reappointment of the relevant teacher, the right to prior notification of the grounds for refusal of reappointment by the person who has the authority to appoint and dismiss the relevant teacher, the right to deliberate on reappointment in accordance with objective standards, the right to state opinion and submit in the procedures for review of reappointment of the relevant teacher, and the method of appeal against the refusal of reappointment. In light of the current provisions of the current Private School Act, the teacher of the private school, the term of whose appointment has expired normally, shall have the legal right to request that the person who has the authority to appoint and dismiss, apply for reasonable and fair review of the appointment in accordance with the procedures stipulated in the current Private School Act, on the basis of objective grounds such as evaluation of the matters concerning student education, academic research, and guidance of students, etc. as to which the person who has the authority to appoint and dismiss the relevant teacher has an interest in seeking nullification of the appointment or appointment.

However, the Constitutional Court decided on January 13, 1997 that the fixed-term appointment system itself cannot be deemed as unconstitutional in the decision of inconsistency with the Constitution regarding the main sentence of Article 53-2(3) of the amended Private School Act. Accordingly, in light of the current Private School Act, the current provision on the appointment system for university faculty as well as the current provision on the appointment system is maintained, a teacher of a private school whose term of appointment expires shall be deemed to lose his status as university faculty upon expiration of his term of appointment unless there are special circumstances, such as forced renewal of appointment or renewal of employment contracts (see Supreme Court Decisions 2003Da262, March 9, 2006; 2003Da52647, March 9, 2006, etc.).

However, in the instant case seeking confirmation that the Plaintiff is still in the position of professor of the Dongdaemun-gu Women’s University under the Defendant, even if the Plaintiff has the right to request a fair review based on reasonable standards as to whether he/she is reappointed to the Defendant, as long as the term of appointment expires, the Plaintiff’s status as a university faculty member is deemed terminated, and thus, it is not permissible to seek confirmation that the Plaintiff is still in the position of professor.

D. Thus, the judgment of the court below which rejected the plaintiff's claim seeking confirmation of the professor status as above is just, and even if the court below erred by misapprehending the legal principles as to the application of law or the decision of inconsistency with the Constitution, it shall not be deemed as an error affecting the conclusion of the judgment.

3. 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 on the bench.

Justices Son Ji-yol (Presiding Justice)