(영문) 서울행정법원 2016.6.17.선고 2015구합76841 판결

1. On July 23, 2015, the part that ordered the Defendant to be reappointed to the Plaintiff among the decisions rendered between the Plaintiff and the Defendant’s Intervenor regarding the revocation of the disposition rejecting re-employment and the revocation of the invalidation thereof, No. 2015-174 and 264, is revoked.

2. The plaintiff's remaining claims are dismissed.

3. The costs of the lawsuit, including the costs incurred by the participation, shall be borne by the Plaintiff, and the remainder shall be borne by the Intervenor joining the Intervenor, and the remainder shall be borne by the Defendant, respectively.

Purport of claim

The decision made by the defendant on July 23, 2015 between the plaintiff and the defendant joining the defendant (hereinafter referred to as "the intervenor") on July 23, 2015 is revoked as to the claim for revocation of a disposition rejecting the reappointment, the review of revocation of a disposition rejecting the reappointment, and the case seeking nullification thereof.

Reasons

1. Details of the decision;

A. Status of the parties

On March 1, 2002, the intervenor was appointed as a full-time lecturer belonging to the department of social welfare at C University established and operated by the plaintiff (hereinafter referred to as the "university of this case").

(b) Measures to refuse the first appointment and administrative litigation and civil litigation thereon;

1) On November 24, 2003, when the intervenor attended the U.S. Public Health Academy and visited the said University upon the invitation of the U.S. Public Health Academy, he received a notice of re-contract to the effect that the intervenor would be deemed to have no intent to file an application for re-contract without submitting research materials, etc. necessary for re-contract from the university of this case by November 28, 2003, and the intervenor returned home on December 27, 2003 and submitted research materials, etc. to the university of this case on December 4, 2003.

2) However, the university of this case decided to refuse to renew the contract with the Intervenor on December 11, 2003 and the board of directors held on the 30th day of the same month, which was held on the 30th day of the same month. On January 7, 2004, the Plaintiff notified the Intervenor that he refused to renew the contract with the Intervenor whose contract term expires as of the 20th day of the same year and the 29th day of the same year on the grounds that the Plaintiff failed to submit the research material by the date on which he submitted the research material, and that the Plaintiff’s qualification as a professor was insufficient (hereinafter “the first refusal

3) On October 14, 2005, the intervenor filed a lawsuit seeking revocation of the first rejection measure against reappointment with the Special Committee on the Appeal against Teachers by the Ministry of Education and Human Resources Development on February 14, 2006 (Seoul Administrative Court No. 2006Guhap16410) on May 2, 2006 (Seoul Administrative Court No. 2006Guhap16410). If the plaintiff had conducted a reasonable re-contract review procedure against the intervenor on December 7, 2006, the above court rendered a favorable judgment to the purport that "the above rejection decision was unlawful" was deemed to meet the minimum standard for research business in re-contract by submitting sufficient research materials to the intervenor, and the special committee on the Appeal against Teachers appealed appealed appealed and appealed on December 18, 2007 (Seoul High Court No. 2006Nu3284, Dec. 24, 2007).

5) On March 5, 2009, the Intervenor filed a lawsuit against the Plaintiff seeking compensation for damages equivalent to the wages or wages until the procedures for reappointment are implemented (Tgu District Court 2009Gahap2631). On January 13, 2010, the said court rendered a ruling of dismissal of the claim on the following grounds:

On February 5, 2010, the Intervenor filed an appeal (Seoul High Court 2010Na9666), and on June 28, 2011, the following mediation (hereinafter referred to as "mediation of this case") was established in the course of the lawsuit.

1. The Plaintiff confirms that the Intervenor is in the position of assistant professor and social welfare department of the instant university from March 1, 2004 to February 29, 2012.2. The Plaintiff, on August 26, 2011, paid to the Intervenor a lump sum payment of KRW 80 million until August 26, 201 and monthly salary from March 201 to August 201, 201: Provided, That the payment of salary from March 1, 2011 to February 2012 shall be based on the salary of professor D (Early Childhood Education) of the instant university, which is reported to the department of study as of April 1, 201, and the amount of tax and public taxes imposed during the said period shall be deducted from the amount of tax imposed on the Intervenor. The Intervenor, during the said period, confirmed that the Plaintiff should be a social welfare research semester from March 3, 2011 to August 28, 2012 (the instant college curriculum).

The subject of the lecture shall be in accordance with the school policy, and the applicant shall mutually adjust the subject assigned to the intervenor, and the plaintiff shall not be required to teach the subject assigned to the intervenor by dividing it into other professors.A. From August 29, 2011 to February 29, 2012, the intervenor shall be engaged only in pure lectures and research activities as a professor while he/she is in the position of assistant professor of the social welfare department of the Plaintiff C University under the Plaintiff’s control from August 29, 201 to February 29, 2012, and he/she shall not engage in any act or organization activity that encourages internal rules in addition to the aforementioned lectures and research activities. However, even if the intervenor is not present at various meetings such as the faculty conference, the plaintiff shall not give up the remaining claims of

1) On August 17, 2011, the Plaintiff, upon the instant conciliation, notified the intervenors that they were reinstated as assistant professors for a period from March 1, 2004 to February 29, 2012.

2) After that, the pertinent university: (a) deemed that the Intervenor was in service only until February 29, 2012 and thereafter agreed to retire; and (b) on February 9, 2012, the board of directors held on February 1, 2012 and the teachers’ personnel committee held on February 16, 2012, dismissed the Intervenor from office on the ground of the expiration of the period; and (c) the Plaintiff notified the Intervenor on February 29, 2012 that the period of appointment expires (hereinafter referred to as “the second refusal of reappointment”).

3) On March 13, 2012, the intervenor filed a claim against the Defendant for the revocation of the second measure to refuse reappointment. On June 4, 2012, the Defendant rendered a decision to revoke the second measure to refuse reappointment on the ground that the intervenor reappointeded as an assistant professor on June 4, 2012 has the right to request the review of reappointment based on reasonable standards and legitimate evaluation pursuant to Article 53-2 of the Private School Act. However, the Plaintiff failed to comply with the prior procedure stipulated in Article 53-2(4) through (7) of the Private School Act and infringed the Intervenor’s rights substantially.

4) The Plaintiff did not proceed with the procedures for examining the re-employment of the Intervenor. The Intervenor filed a lawsuit seeking compensation for damages equivalent to wages or wages and consolation money (Seoul District Court 2012Gahap4392) until the measure of refusing the second re-employment is confirmed null and void, and the second refusal of re-employment is null and void on September 5, 2012 due to serious substantive and procedural defects. However, the Intervenor’s status as the university faculty member was terminated on February 29, 2012 as prescribed in the instant conciliation, and thus, the Intervenor’s claim for wages is without merit, but the Plaintiff rejected the second re-employment without objective justification. The Plaintiff rejected the second re-employment due to the Plaintiff’s failure to meet the objective duty of care, and the Plaintiff’s dismissal of damages equivalent to the amount of wages paid in March 1, 2012 and damages for delay from April 1, 2012 to the Intervenor’s reinstatement, and the Plaintiff’s appeal and damages for delay from 130 14.25.14

(d) Measures to refuse to re-appoint a third party;

1) On August 6, 2013, the chairperson of the faculty personnel management committee of the instant university decided to proceed with the review of re-employment for a period from March 1, 2004 to February 29, 2012, the chairperson of the instant university notified the intervenor of the purport that he/she shall shipping the relevant data to August 16, 2013. Accordingly, on August 8, 2013, the intervenor requested "the chairperson of the said teachers personnel management committee to conduct the review of re-employment by establishing a separate standard for the period of his/her dismissal for reasons attributable to the defendant." On August 14, 2013, the chairperson of the said teachers personnel management committee sent a notice to the purport that "on March 1, 2011 to February 29, 2012, the intervenor was not a teacher whose term of office has expired." The chairperson sent a notice to the purport that "on March 1, 2011 to the date of reinstatement to the intervenor."

2) On August 23, 2013, when the intervenor did not submit data on the research business, the chairman of the said faculty personnel management committee again requested the intervenor to submit data on September 3, 2013, and on September 6, 2013, the intervenor submitted a thesis of "E" (hereinafter referred to as the "the thesis of this case") to the chairman of the said faculty personnel management committee.

3) On September 30, 2013, the teachers’ personnel committee of the pertinent university assessed the instant thesis at the teachers’ personnel committee. However, the instant paper notified the intervenors of the content that “in the absence of Articles 38 and 39 of the Regulations on the Personnel Management of Teachers because it does not comply with international academic sites, domestic academic sites, and other academic sites, the Intervenor was dismissed from reappointment,” and if there is an objection, it would be an objection to it on October 17, 2013.”

4) After hearing the intervenor's explanation on October 17, 2013, the teachers' personnel committee of the pertinent university decided to dismiss the intervenor from reappointment on the ground that the thesis of the instant case does not conform to the international academic area, domestic academic area, or other academic area stipulated in the teachers' personnel management regulations. The plaintiff's board of directors decided to dismiss the intervenor from reappointment on October 28, 2013, on the ground that the intervenor's research reasoning was insufficient, and the plaintiff's chief director notified that the intervenor was dismissed from reappointment on the same ground (hereinafter referred to as "third refusal measure").

5) On January 10, 2013, the intervenor filed a petition for review of the appeal seeking the revocation of the third measure to refuse reappointment with the defendant on January 15, 2014, but the defendant rejected the intervenor's claim on the ground that "the third measure to refuse reappointment was not erroneous in the process of the third measure to refuse reappointment" and it cannot be deemed difficult to achieve the plaintiff's claim for 10 points of research business equivalent to Part 1 of this paper as a result of research from August 29, 2011 to February 29, 2012. However, the thesis of this case prepared by the intervenor does not constitute international academic area, domestic academic area, or other academic area, and the third measure to refuse reappointment with the intervenor does not constitute deviation or abuse of discretionary power (hereinafter referred to as "prior decision").

6) On January 17, 2014, the Intervenor filed a lawsuit seeking revocation of the above dismissal ruling (Seoul Administrative Court 2014Guhap 50866). The above court recognized that the Intervenor’s right to receive a fair review of reappointment was infringed upon during the period from March 1, 2011 to August 28, 201 when the Intervenor did not actually work. Article 19(1) of the Seoul High Court Regulation 19(1) of the same Regulation provides that the Intervenor’s right to receive a fair review of reappointment was 160 points for the latest four years to the assistant professor whose appointment period expires, 300 points for research work, 10 points for 160 points for the Intervenor, 100 points for research work, 160 points for the first 20th 6th 10th 6th 2th 2nd 2nd 3th 2nd 196th 2nd 2nd 2nd 3th 2nd 3th 2nd 3th 2nd 3th 2nd 2nd .

E. The fourth rejection of reappointment and the decision of this case

1) On January 6, 2015, the Intervenor filed an application against the Plaintiff for a provisional disposition to implement the procedures for reappointment with the Daegu District Court, and on June 30, 2015, the Daegu District Court rendered a provisional disposition to the effect that the Plaintiff would complete the procedures for examining the appointment of the associate professor of the University to the Intervenor by June 30, 2015 (Seoul District Court 2014Kahap3064).

2) On March 30, 2015, the Plaintiff’s personnel committee set the period of review for reappointment of the Intervenor from August 29, 201 to February 29, 2012 in accordance with the purport of the judgment prior to the instant case. On March 1, 2010, the Plaintiff’s review criteria for Intervenor were 20 points in the education industry (160/8), 37.5 points in the research industry (30/8), 20 points in the salary industry (160/8), 20 points in the Plaintiff on March 30, 2015 (160/8), 20 points in the education industry (20.3 points in the education industry) and 20 points in the education industry (240/1240/120, 2015.3 points in the research industry). The Plaintiff’s review criteria for Intervenor’s reappointment were 20 points in the education industry (240/1205 points in the research industry).

3) On April 27, 2015, the Plaintiff’s Personnel Committee notified the Intervenor that he/she should submit additional documents on the date of vindication because he/she did not fall under an international academic journal, domestic academic journal, or other academic journal, and thus, he/she was dismissed from his/her reappointment below the research standard points. Thus, on May 12, 2015, the Plaintiff’s Personnel Committee notified the Intervenor that he/she should submit additional documents on the date of vindication because he/she did not appear on the above date.

4) On May 14, 2015, the Plaintiff’s Teachers’ Personnel Committee sent a certificate of content that the Intervenor would not vindicate the research products. Accordingly, the Intervenor was dismissed from reappointment as of April 27, 2015, and the Intervenor notified that the Intervenor was dismissed from reappointment as of April 15, 2015, and that the Intervenor was dismissed from reappointment as of April 27, 2015 (hereinafter “the fourth refusal of reappointment”).

5) On May 22, 2015, the intervenor filed a petition for review of the appeal seeking revocation of the measure of refusal of reappointment and the order of performance of reappointment with the defendant. On July 23, 2015, the defendant, according to the binding force of the preceding judgment, the third refusal of reappointment should be revoked. The fourth review demanding an intervenor, who was not recognized as a professor by the measure of refusal of reappointment, to publish papers in the academic field published by the Korean Council at a national level within six months, cannot be deemed as a fair review of reappointment based on objective reasons stipulated in Article 53-2 (7) of the Private School Act. The fourth review that requested an intervenor, who was not recognized as a professor by the measure of refusal of reappointment, cannot be deemed as a fair review of reappointment based on objective reasons stipulated in Article 53-2 (7) of the Private School Act.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 9, Eul evidence 1 to 6, Eul evidence 1 to 1 (if there is a lot number, including each number) and the purport of the whole pleadings

2. Whether the decision of this case is legitimate

A. The plaintiff's assertion

1) It is difficult to readily conclude that the Intervenor was unable to serve as a teacher due to the Plaintiff’s causes attributable to the Intervenor. Considering that the Intervenor could have concentrated more on research during the period during which the Intervenor was unable to serve as a teacher, that the thesis submitted during the period from March 1, 2011 to August 28, 2012, which the Intervenor did not serve as a teacher, is more favorable to the Intervenor, and that it is rather more favorable to the Intervenor, that the review criteria for the third refusal of reappointment is difficult to be deemed particularly unfavorable to the Intervenor in light of the fact that the researcher’s research year, and the number of teaching staff in long-term overseas training only conducts research, and that it is difficult for the Intervenor to achieve 10 points of research in light of the demand for the assistant professor’s 300 points of research for the four-year period, it cannot be deemed that all the papers were inappropriate to evaluate the thesis of this case in accordance with the standards for the evaluation of teaching staff's position already prepared, the third rejection disposition is lawful and unlawful.

2) In light of the following: (a) an intervenor may conduct research and make a thesis as a faculty member even without the status as a professor; (b) rather, he/she may concentrate on school affairs without reducing time; (c) it cannot be concluded that the period of six months’ work period is an overly short period compared to the time required for the preparation and registration of this paper; (d) the standards for teaching staff evaluation cannot be deemed as difficult to achieve such standards; and (e) the Intervenor’s whole thesis cannot be recognized as a research product; and (e) if an intervenor’s separate standards are set and reviewed only with respect to the Intervenor, the refusal of re-employment is lawful; and (e) the decision of the second instance is unlawful.

3) As long as the first and second decisions are unlawful, the third decisions premised on such decisions are also unlawful.

B. Relevant provisions

It is as shown in the attached Form.

C. Determination

1) Whether the first decision is lawful

Article 30(1) of the Administrative Litigation Act provides that a final and conclusive judgment revoking a disposition, etc. shall bind the administrative agency which is the party concerned and other administrative agencies concerned with the case. Such a final and conclusive judgment's binding force of revocation is recognized in the judgment to which the claim for cancellation was accepted, and thus imposes an obligation on the administrative agency concerned and other administrative agencies concerned to act in accordance with the final and conclusive judgment.

As seen earlier, the fact that the prior ruling of this case revoked the prior ruling of this case on the ground that the refusal of the third re-election was a deviation from or abuse of discretionary authority and was unlawful is identical to that of the previous ruling of this case. Therefore, the first ruling revoking the third re-election refusal measure is lawful in accordance with the binding force of the prior ruling of this case. The Plaintiff’s assertion

2) Whether the second decision is lawful

A) If a teacher of a private university who has been appointed as a fixed-term teacher and whose term of appointment expires after undergoing a fair examination based on reasonable standards regarding his/her ability and qualities, barring any special circumstance, he/she shall be entitled to demand fair examination based on reasonable standards as to whether he/she is reappointed (see, e.g., Supreme Court Decision 2003Da52647, Mar. 9, 2006). If a decision rejecting the reappointment of a teacher of a private university whose term of appointment expires is procedural or substantive reasons, the school foundation is obligated to resume the procedures for examining whether he/she is reappointed (see, e.g., Supreme Court Decision 2007Da47841, Sept. 30, 201). In addition, the purpose of the examination is not only to provide a reasonable legislative process of the Private School Act as amended by Act No. 7352, Jan. 27, 2005; the purpose of the examination procedure and objective grounds for rejection of reappointment of a teacher after the determination of qualifications under Article 373 of the Private School Act.

B) Based on the above legal principles, comprehensively taking into account the following circumstances, which can be seen as being revealed by adding to the purport of the entire pleadings as seen earlier, the examination criteria applied by the Plaintiff at the time of the fourth re-election examination for the Intervenor cannot be deemed as an objective criteria, and it is difficult to view that the fourth rejection measure based on the foregoing was conducted fairly in accordance with reasonable standards. Accordingly, the rejection measure for the fourth re-election is unlawful, and the second decision as to the foregoing conclusion is lawful. The Plaintiff’s assertion on this part is without merit.

(1) Article 19(1) of the Regulations on the Examination of Teachers' Status of March 1, 2010 was in force, but the intervenor had been guaranteed the status of assistant professor for six months following the instant adjustment from August 29, 201 to February 29, 2012, when the intervenor was reinstated. Although the period of appointment was from August 29, 201 to February 29, 2012, the minimum level of deliberation required for the reappointment of assistant professor whose period of appointment expires during the above period of appointment is 160 educational hours based on the recent four years subject to the evaluation period, and 160 teaching hours as of March 1, 201. However, the intervenor failed to make efforts to meet the above criteria, since the above regulations on the evaluation of the teaching staff's status applied to assistant professor whose period of appointment has expired during the above period of appointment for four years as of March 1, 2010.

(2) The Plaintiff should have prepared relative criteria applicable to the review of re-employment for the Intervenor, taking into account the circumstances in which the Intervenor did not work as a result of the Plaintiff’s illegal refusal of re-employment. Nevertheless, the Plaintiff, at the third re-examination of re-employment, demanded that the Intervenor publish an thesis in the academic field of major published by the Korean Council, by setting out 100 research guidelines during the review period from March 1, 201 to February 29, 2012. The previous judgment of this case ordering the revocation of the third refusal of re-employment was final and conclusive, which ordered the revocation of the third re-employment. The Plaintiff had already known that the Intervenor did not meet research research materials standards stipulated in the faculty personnel regulations through the third re-election examination, and did not establish reasonable relative criteria in consideration of the Intervenor’s special circumstances. However, the Plaintiff adopted only the research materials for the review period of re-employment and the research materials for which the research results were reduced, as it is, as it is the next re-examination criteria for re-employment.

(3) Article 9 [Attachment 2] and Article 39 subparagraph 1 (a) of the Regulations on the Personnel Management of Teaching Staff of March 1, 2010 provide that 150 points in research papers, 100 points in domestic academic papers (excluding domestic academic papers), and 50 points in research papers (excluding 20 points in research papers published by the Korean Science Promotion Foundation) shall be deemed as 10 points in research papers, and that 19 (1) of the Regulations on the Examination of Faculty Personnel of March 1, 2015 shall be deemed as 20 points in research papers, 20 points in research papers or 30 points in research papers, which shall be deemed as 10 points in research papers and 1.5 points in research papers, which shall be deemed as 20 points in research papers or 240 points in research papers, respectively.

(4) In the fourth re-employment examination, the Plaintiff requested the Intervenor to submit materials on the educational business and the salary business, but the Intervenor failed to submit them as seen earlier. However, since the Intervenor submitted materials on the educational business and the salary business as long as the illegal research business standards, which the Plaintiff could not satisfy, are set by the standards for the fourth re-employment trial, it appears that the Intervenor failed to submit materials on the educational business and the salary business, the circumstance that the Intervenor did not submit materials on the educational business does not interfere with the recognition of the illegality of the measure of refusal of re-employment.

3) Whether the third decision is lawful

A) The fact that the defendant revoked the third and fourth rejection measures for reappointment, while the defendant rendered the third decision ordering the renewal of an intervenor on the grounds that the rejection measures for reappointment more than four times of the plaintiff was illegal. This is as seen earlier.

B) The Special Act on the Improvement of Teachers' Status (amended by Act No. 13819, Jan. 27, 2016; hereinafter the same shall apply) provides that when a teacher is dissatisfied with disciplinary action and other unfavorable measures against him/her against his/her will, he/she may file a petition with the Appeal Committee for Teachers (hereinafter referred to as the "Review Committee") within 30 days from the date he/she becomes aware of such disposition (main sentence of Article 9(1)). The provision on a petition filed against a teacher provides for matters delegated by the Special Act on the Improvement of Teachers' Status as well as matters necessary for the enforcement of the Act with respect to the request for review of an appeal, review, decision, etc. of a teacher and matters necessary for the improvement of teachers' status with respect to the request for review of an appeal, review and decision made by a teacher, the Review Committee shall revoke or change the disposition, and order the person entitled to disposition to cancel or change the disposition (Article 16(2)3).

C) However, given that a private school teacher is appointed and dismissed under a private employment contract with a school juristic person and received wages from a school juristic person as a consideration for educating students, the relationship between the school juristic person and the teacher is based on judicial relations in principle. Although a broad supervision and control of the State is imposed on the school juristic person, it guarantees the same status as a national or public school teacher who is a private school teacher, the legal relationship between them is not different from that of a public educational official, on the premise that the legal relationship between them is private law relations. Thus, refusal of reappointment as an exercise of personnel rights to private school teachers of a school juristic person is also characterized as a judicial legal act (see, e.g., Constitutional Court Order 2005Hun-Ga7, 2005Hun-Ma163, Feb. 23, 2006). Accordingly, rejection of reappointment of a private school teacher of a school juristic person cannot be deemed a disposition of an administrative agency, and it cannot be deemed that a decision of the Review Committee also constitutes an administrative appeal against a private school juristic person and a decision of rejection.

By doing so, it is reasonable to view that an administrative disposition with public authority and determined by an administrative agency constitutes an administrative disposition (see the above decision of the Constitutional Court).

D) In addition, in light of the contents of Article 53-2(4) through (8) of the Private School Act, a private university teacher who has been appointed as a fixed-term teacher and whose term of employment has expired shall be entitled to a fair examination based on reasonable standards on his/her ability and qualities as a teacher, unless there are special circumstances, to demand a fair examination on whether he/she is reappointed with the expectation that he/she will be reappointed, and the right to demand the reappointment itself does not seem to have been granted.

E) In light of such overall circumstances, even if a private university teacher who is appointed as a fixed-term teacher and whose term of appointment expires, is granted the right to file a petition to the Review Committee, the content of the right that serves as the basis of the right to file a petition for review is limited to the right to request fair review in accordance with reasonable standards. Therefore, the subject of the Review Committee’s determination is whether the subject of a review has undergone a fair review in accordance with reasonable standards in relation to the legal relationship that refuses to be reappointed, and further, it cannot be deemed that the school foundation has the authority

F) As seen above, the provision on a petition for a teacher provides that the Review Committee may order the person to fulfill his/her duty in accordance with the purport if the request for review of an appeal seeking the performance of his/her duty is deemed reasonable. However, this provision provides that the Special Act for the Improvement of Status of Teachers shall not distinguish a teacher of a private school from a teacher of a private school and a teacher of a national or public school, and shall allow the Review Committee to review an appeal against disciplinary action or other unfavorable measures against his/her will (including a disposition of rejection for reappointment of a teacher under Article 11-3 (4) of the Public Educational Officials Act and Article 53-2 (6) of the Private School Act) (Article 7 (1) and Article 9 (1) of the Private School Act). The provision on the petition for a teacher delegated by the same Act does not distinguish a teacher of a private school from a teacher of a private school and a teacher of a national or public school. The provision that allows the Review Committee to order the person to carry out such duty shall be deemed as a disposition of an administrative agency.

G) Therefore, among the instant decision, the third decision ordering the Defendant to directly re-appoint the Intervenor beyond taking procedures for examining the appointment of the Intervenor against the Plaintiff should be revoked as it goes beyond the scope of his/her authority.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.