[1] In a case where Eul who had been newly appointed as a full-time lecturer at a university operated by Gap corporation as a full-time lecturer at Gap corporation, requested a teachers' appeals review committee to confirm that the notice of cancellation of appointment is null and void, the case holding that the notice of cancellation of appointment constitutes "other unfavorable measures against teachers' will" under Article 7 (1) of the Special Act on the Improvement of Teachers' Status

[2] Where a private school teacher is notified that his appointment is revoked by a school juristic person while he continues to serve after expiration of the term of appointment, whether there is a legal interest in requesting a review of a teacher's petition (affirmative)

[1] In a case where Eul, who was newly appointed as a practical music and full-time lecturer at a university operated by the school foundation Gap, was notified of the cancellation of appointment on the ground that new appointment was null and void, filed a petition review with the Appeal Committee for Teachers who received the notification that the cancellation of appointment was invalid, the case holding that the notice of cancellation of appointment constitutes "other unfavorable measures against the will of a teacher" under Articles 7(1) and 9(1) of the Special Act on the Improvement of Teachers' Status, and thus becomes subject to a petition for a teacher

[2] Even if the term of appointment has already expired before filing a petition for the examination of a teacher in a private school, the right to request the person authorized to appoint and dismiss the teacher to decide whether to be reappointed upon deliberation and deliberation by the Private School Act and the school foundation's articles of incorporation after the expiration of the term of appointment, while the right to request the person authorized to appoint and dismiss the teacher to decide whether to be reappointed is recognized by a notice of the cancellation of appointment is not recognized. In particular, if a new appointment is invalidated by a notice of the cancellation of appointment, such right is not recognized, and the teacher is not recognized at all until the date of the cancellation of appointment, thereby affecting whether the teacher has research experience and education experience required for the qualification standards stipulated in Article 2 subparagraph 1 and [Attachment] of the Regulations on the Criteria for Qualification for University Faculty Members, and thus, it is reasonable to view that there is legal interest in filing a petition for the examination of a petition for the cancellation of appointment in order to eliminate risks or apprehensions about the above rights or

[1] Articles 7 (1) and 9 (1) of the Special Act on the Improvement of Teachers' Status / [2] Articles 7 (1) and 9 (1) of the Special Act on the Improvement of Teachers' Status; Article 12 of the Administrative Litigation Act

[2] Supreme Court Decision 91Da1134 delivered on June 25, 1991 (Gong1991, 2003) Supreme Court Decision 92Nu4611 delivered on September 14, 1993 (Gong1993Ha, 2801)

Basic Institute of Education for School Foundation (Attorney Kim Jong-soo et al., Counsel for the defendant-appellant)

Appeals Review Committee for Teachers

Intervenor joining the Defendant

Seoul High Court Decision 2011Nu14601 decided October 25, 2011

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

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

1. As to the ground of appeal that the instant case does not constitute subject to the examination of a petition

Article 7 (1) of the Special Act on the Improvement of Teachers' Status provides that "A teachers' appeals review committee shall be established in the Ministry of Education, Science and Technology to review disciplinary action against teachers of various levels of schools and other unfavorable measures against their will (including the disposition of refusing re-election against teachers under Article 11-3 (4) of the Public Educational Officials Act and Article 53-2 (6) of the Private School Act)" and Article 9 (1) of the same Act provides that "where a teacher is dissatisfied with a disciplinary action or other unfavorable measures against his/her will, he/she may file an appeal with the Appeal Commission for Teachers within 30 days after he/she is informed of such disposition," while Article 2 (1) of the Regulations on Petitions for Teachers' Appeal requests for an appeal, he/she may require the petitioner for the appeal, the name of the school to which the applicant belongs or former position of the school, the respondent, the respondent, the date he/she becomes aware of such disposition, the purpose of the request for review of appeal, the reason for and method of proof, etc. to the Appeal.

According to the facts duly established by the lower court, the Intervenor’s Intervenor (hereinafter “ Intervenor”) was duly appointed on September 1, 2008 as a practical music at ○ University operated by the Plaintiff and a full-time lecturer, and was notified on March 9, 2010 that the Intervenor’s new appointment as a full-time lecturer was revoked (hereinafter “instant notice of cancellation of appointment”), and on March 19, 2010, the Defendant filed a petition for the review of the appeal against the Defendant on March 7, 2010, and received a decision confirming that the instant notice of cancellation of appointment was null and void (hereinafter “instant decision”). The instant notice of cancellation of appointment is retroactively invalidated on the part of the Intervenor’s appointment, and it can be seen that there was no legal interest in the petition review, apart from the allegations in the grounds of appeal, in light of the legal nature of “other unfavorable measures against teachers” as stipulated in Articles 7(1) and 9(1) of the Special Act on the Improvement of Teachers’ Status, as otherwise alleged in the grounds of appeal.

2. As to the Intervenor’s ground of appeal on the lawfulness of new appointment

According to the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below, the court below determined that the intervenor was appointed upon the resolution of the board of directors on the recommendation of the non-party president by considering the following circumstances, including the fact that the non-party to president did not raise any objection to the appointment of the intervenor for one year and six months after the appointment

In light of the evidence duly admitted by the lower court, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the burden of proof, etc., thereby failing to exhaust all necessary deliberations, etc.

3. As to the ground of appeal on the expiration of the term of appointment due to the intervenor's reappointment

A. According to the reasoning of the judgment below and the records, the court below rejected the plaintiff's assertion that the intervenor's appointment period was terminated on August 31, 2009, since the intervenor was not reappointed after being appointed for a period of one year from September 1, 2008, and the appointment period expires on August 31, 2009. Thus, the notice of the cancellation of appointment in this case should be viewed as a legitimate notification of dismissal as it was notified to the intervenor who lost his status as ○ University teacher on August 31, 2009. In light of the circumstances stated in the judgment, the court below rejected the plaintiff's assertion that the intervenor and the plaintiff were reappointed contract between the intervenor and the plaintiff with the appointment

However, according to the reasoning of the judgment below, the notice of cancellation of appointment of this case was not notified by the intervenor that he lost his status as a teacher on August 31, 2009, but was notified by the intervenor that his new appointment on September 1, 2008 was null and void due to a serious procedural defect from the time of appointment. The decision of this case, which was issued as a result of the defendant's petition review, was also subject to determination as to the invalidity of the notice of cancellation of appointment of this case which retroactively invalidated the appointment of the intervenor, and it was not subject to determination as to whether the intervenor lost his status as a teacher on August 31, 2009.

Therefore, the issue of whether the intervenor lost his status as a teacher on August 31, 2009 does not constitute grounds to revoke the decision of this case. Thus, although it is inappropriate for the court below to determine whether he loses his status, the conclusion of the court below which rejected the plaintiff's assertion to the purport that the decision of this case is lawful on the ground of the above ground is just, and there is no error of law

B. On August 31, 2009, before the intervenor filed a petition for the review of the appeal of this case on March 19, 2010, even if the period of appointment expires as alleged by the plaintiff on August 31, 2009, the intervenor has the right to request the person with the authority to appoint and dismiss the right to be deliberated upon by the Private School Act and the Plaintiff’s articles of incorporation, and to decide whether to be reappointed after deliberation. On the other hand, if new appointment is deemed null and void by the notice of cancellation of appointment of this case, such right is not recognized and the legal status is different. In particular, since the intervenor was unable to be recognized at all for the period from the date of the notice of cancellation of appointment of this case after the appointment of this case, the intervenor may suffer disadvantages such as research results necessary for the qualification standards of university faculty members and education experience (training) under Article 2 subparag. 1 and [Attachment] of the Regulations on the Criteria for Qualification of University Faculty Members, and thus, the intervenor may have legal influence on the appointment of faculty members.

Therefore, the judgment of the court below that the decision of this case based on the petition review is legitimate on the premise that the intervenor has a legal interest in requesting an examination of the petition regarding the notice of cancellation of appointment in this case, did not err in the misapprehension of legal principles as to the interest in the lawsuit, contrary to

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 on the bench.

Justices Yang Chang-soo (Presiding Justice)