205Du12162 Implementation of procedures for the appointment of teachers

Ansan ○

Yeongdeungpo-gu Seoul Metropolitan Government ○7 Dong 1 △70

Law Firm Han-han, Counsel for the plaintiff-appellant

[Judgment of the court below]

○ School Foundation

Seoul Mapo-gu ○○ Dong 1 - 1

Representative Park Professor

Law Firm Shin-soo, Counsel for the plaintiff-appellant

[Defendant, Appellant]

[Defendant-Appellee] Defendant 1 and 3 others

Lee ○, Lee ○, Lee ○, Lee ○, Kim ○, Kim ○, and Hong ○○

April 20, 2007

May 25, 2007

1. The defendant shall pay 10,000,000 won to the plaintiff.

2. The plaintiff's primary claim, the first preliminary claim and the second preliminary claim are all dismissed.

3. The costs of lawsuit shall be borne by each person;

1. The defendant's primary purport of the claim is that the plaintiff is a person specializing in the reading and reading of the literature of the Seocho University and the German culture.

He shall be appointed as full-time professor.

2. Where the defendant fails to implement paragraph (1), each month from the date of sentencing until the date of performance.

5,000,000 Won shall be paid to the Plaintiff.

1. Claim No. 1: The defendant, which was suspended on December 13, 2004, shall notify the professor first on May 31, 2004.

the appointment procedure for the plaintiff according to the plaintiff will resume.

2. Where the defendant fails to implement paragraph (1), monthly gold from the date of sentencing until the date of performance.

5,000,000 Won shall be paid to the Plaintiff.

Preliminary Claim: 100,000,000 won for the defendant and the date of sentencing shall be the plaintiff.

Before the date of full payment, 20% interest per annum shall be paid.

1. Basic facts

The following facts shall not be disputed between the parties, or may be acknowledged by adding up the whole purport of the pleadings to each entry in Gap evidence 1 through 2:

A. The Plaintiff graduated from ○○ University (1986) and from her graduate school (198) operated by the Defendant Corporation (hereinafter referred to as “Defendant University”), and completed the doctor’s degree course (190). After completing the doctor’s degree course at the German Le halogsc University (1991 to 1998), the Plaintiff returned to Korea after acquiring a doctor’s degree from her graduate school at the Defendant University (201), and demoted Germany’s culture, readings, and U.S. at the Defendant University (201).

B. On May 31, 2004, the Defendant University invited 15 professors per each of the 10 major departments (including culture departments) of the Defendant University at the Central Library and the Defendant University website, respectively, on the major field of the Defendant University, and invited 15 professors in the German culture department among them (the appointment date of appointment date of March 1, 2005).

C. On August 2, 2004, the Plaintiff received the documents required for the submission of support and research achievements, etc. from the Defendant University and received the examination of the first, second and second major examinations and open lectures, etc. However, on December 13, 2004, the Plaintiff was notified by the president of the Defendant University of the final refusal of appointment on December 13, 2004 (hereinafter referred to as the “Notice of Non-Appointment”).

2. Summary of the parties’ assertion and relevant statutes

A. The summary of the Plaintiff’s assertion (1) is that the Plaintiff has the right to apply for the appointment of a university faculty member if he/she goes through a fair interview with the person who has the authority to appoint the Defendant university (A) and passes the examination. However, the Plaintiff’s recommendation opinion of the president of the German Literature Department who recommended three candidates to recommend the Plaintiff as a single candidate in the Majority Opinion is in violation of the rules of appointment, and the Plaintiff’s opinion reported to the president by the teachers’ personnel committee to the president is in violation of the rules of appointment. The Plaintiff’s non-election report based on these erroneous opinions is deemed to be arbitrary by presenting the minority opinion, which is a major associate, and emphasizing it again, thereby infringing the Plaintiff’s right under the Plaintiff’s reasoning. Accordingly, the Defendant University is obligated to appoint the Plaintiff as a former professor or resume the appointment procedure suspended as a preliminary professor, and the amount equivalent to the Plaintiff’s non-election report is obligated to compensate the Plaintiff by the date of performance of the appointment.

(B) The Defendant is liable to compensate for damages, as it violated the Plaintiff’s trust that was believed to be appointed through a fair examination procedure on the responsibility of tort or the negligence in concluding a contract by suspending the procedures for examining the appointment of teachers without justifiable grounds. (2) The Defendant’s assertion that the Defendant is liable

Since any person involved in the appointment procedures, such as the president of the Defendant University, has the right to expect that he will be appointed as a teacher, or did not have trust in the appointment of a teacher, the Plaintiff cannot be recognized as having the right to apply for the selection of a teacher. Furthermore, the decision to dismiss the instant case does not violate the Private School Act, the articles of incorporation of the Defendant Corporation, the personnel regulations of full-time teachers, etc. in the process or content thereof, and is lawful as it does not deviate

B. Provisions of relevant statutes (1) The qualifications of private school teachers under Article 52(a) of the Private School Act (A) shall be governed by the provisions concerning the qualifications of national and public school teachers.

(b) Article 53-2 (Appointment and Dismissal of Teachers Other Than the head of a school) (1) School teachers of various levels of schools shall be appointed and dismissed by the school juristic person or the manager of private school concerned, but they shall fall under any of the following subparagraphs

1. Appointment and dismissal of a teacher of a private school established and operated by a school juristic person or a private school manager which is a juristic person shall undergo a resolution by the board of directors on the recommendation of

(3) Teachers of a college educational institution may be appointed on such contractual terms as period of service, conditions of salary, achievements, performance agreements, etc., as prescribed by the articles of incorporation. In such cases, the relevant provisions applicable to the faculty of the State and the public university shall apply mutatis mutandis to the period of service (c) Article 53-3 (School Personnel Committee) (1) Teachers (excluding the heads of schools (excluding the heads of schools), such as elementary schools, high technical schools, civic schools, high civic schools, kindergartens, and various kinds of schools equivalent thereto).

The teachers' personnel committee shall be established in the schools concerned to deliberate on important matters concerning the personnel affairs, such as appointment and dismissal.

(2) Matters necessary for the organization, functions, and operation of the teachers' personnel committee shall be prescribed by the articles of incorporation in cases of school foundations and managers of private schools who are corporations, and by rule in cases of managers

(Application Mutatis Mutandis of Article 11 (4), (5) and (6) of the Public Educational Officials Act shall apply mutatis mutandis to the appointment of faculty members of a college educational institution who is not the head of a school (applicable mutatis mutandis of the provisions on teachers of national and public universities).

(2) Article 11 (New Employment, etc. of Teachers) (5) of the Public Educational Officials Act is to newly employ a university teacher, it must undergo an objective and fair examination by appointing or commissioning an examiner.

(6) Methods of appointing or commissioning examiners as provided for in paragraph (5), stages and methods of screening, and other matters necessary for screening shall be prescribed by Presidential Decree.

(3) Article 4-3 (New Employment of University Faculty Members) of the Decree on the Appointment of Education (3) Appointment of University Faculty Members under Article 11 (6) of the Act shall be conducted through the following stages, and the head of a university may, if necessary, integrate each examination phase and, if necessary, determine the detailed matters necessary for the enforcement thereof:

1. Basic examination: Examination on whether the recruitment candidate's major corresponds to that of the recruitment candidate's major;

2. Special examination: Examination of the academic excellence and educational ability, etc. of the majors of the candidates who have passed the basic examination;

3. Interview examination: Examination of personality, etc. of candidates for employment who have passed a specialized examination;

(4) The examination committee members for examination of employment under paragraph (3) shall be appointed or promoted by the head of a university or college from among teachers belonging to the relevant university or experts with abundant knowledge and experience in the field of major subject to recruitment. In such cases, when the examination is conducted to determine whether the major of a candidate for employment corresponds to that of a major subject to recruitment and whether the major of a candidate for employment is academic excellence in the field of major subject to recruitment, at least 1/3 of the examination committee members

(5) Where the head of a university intends to employ a university faculty member, he/she shall publicly announce the matters concerning the criteria for examination of qualifications for employment in the field of employment with one month prior to the due date of support in a daily newspaper, information and communications network, or

(6) Where a person who applies for new employment of a university faculty requests disclosure of the standards for examination on new employment and examination results by applicant, such disclosure shall be made after the new appointment becomes final and conclusive.

(4) The appointment of professors, associate professors, assistant professors, full-time lecturers, etc. shall be made by the president on the recommendation of the president after deliberation by the personnel committee. (b) Article 52 (Functions of the personnel committee) (1) The personnel committee shall deliberate on the following matters:

1. If the president intends to propose appointment and dismissal of professors, associate professors, assistant professors, and full-time instructors, he/she shall be classified as professors, associate professors, assistant professors, and full-time instructors, and full-time instructors (5) of the main provisions (a) of the Personnel Regulations for Full-time Teachers of the Defendant University (hereinafter referred to as the “Personnel Regulations”) of Article 2 (Classification of Professors) of the Rules on the Personnel Management for Full-time Teachers of the Defendant University.

(B) In principle, a new appointment of a former teacher shall be made publicly. However, only the necessary experts for domestic and foreign scholars or university specialization projects with a scientific reputation may be made specially through a deliberation of the Committee. (c) Article 6 (Appointment Procedures)

1. The dean shall notify the president of the relevant department of the recommendation of an eligible person after obtaining a budgetary confirmation from the president;

2. The head of the relevant department shall recommend candidates for appointment to the head of the relevant department, along with a written opinion, after obtaining the consent of the faculty council of the relevant department;

6. The Committee shall have a review member examine the results of a research business, examine the results of the review, and shall evaluate the educational personality, educational background, educational experience, details of recommendations, conformity in the field of study, etc. comprehensively.

8. The director of the department in which he/she has failed to determine employment by the time the final teachers' personnel committee for appointment of the relevant semester is held shall submit to the teachers' personnel committee the minutes of the department related to employment, the statement of reasons why the process and adjustment of opinions has been completed, and other reference documents requested by the teachers' personnel committee, via a faculty meeting for the relevant department, to recommend candidates equivalent to three times the number of professors scheduled to be appointed in the fields of employment through the faculty's meeting, and the teachers' personnel committee shall deliberate on such matters, report the results thereof to the president, and make a final decision

(d) Article 7 (Determination on Appointment and Contract) (1) The president shall determine whether to appoint a candidate recommended by the president.

(2) The president shall conclude an appointment contract with specified terms and conditions of such contract as the date of appointment, position, term of contract, salary, and work, and report the appointment to the Ministry of Education

E) The term of appointment for each position of a teacher is as follows and may be reappointed upon the expiration of that term:

2 years of full-time lecturer

(c) Facts of recognition;

The following facts are no dispute between the parties, Gap evidence 2-1, Eul evidence 4-2, Eul evidence 7-1 (the same as Eul evidence 2), Eul evidence 7-2, Eul evidence 9-1 (the same as Eul evidence 5-9), Eul evidence 1-2, Eul evidence 1-2, Eul evidence 2 (the same as Eul evidence 6), Eul evidence 5-4, Eul evidence 10-4, Eul evidence 10-4, Eul evidence 10-2, Gap evidence 7-1 (the same as Eul evidence 2), Gap evidence 7-2, Gap evidence 9-1-2, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 2-2, Eul evidence 5-13, Eul evidence 10-4, Eul evidence 10-2, research and development of the subjects of research and development (the following contents are included) research experience of the defendant's university's invitation and development of the subjects of research, and (the method of publication) research and development of the subjects of research is more than 30 years:

C. In addition, if there is no eligible person in the relevant field, it may not be invited, and matters not specified in the public notice shall be governed by the personnel management regulations and guidelines of the Defendant University. (2) The applicants for German cultural full-time professors of Germany were 17 persons (12 doctorates, 4 doctorates, and 1 cultural majors).

(3) Three external examiners, including three professors working in the German subject of the Defendant University, were selected through the first document screening. (4) On November 11, 2004, three professors including the Plaintiff and five professors working in the German subject of the Plaintiff’s German subject of the appointment process were conducted on the second anniversary of the appointment process. (5) Three professors of the German subject of the Plaintiff’s German subject of the appointment process such as this ○○○○○○○○○○, and ○○○○○○○○, were present for 2 days from November 15, 2004, as well as 3 professors of the Plaintiff’s German subject of the appointment process, for which it was objectively appropriate for 16 professors of the Plaintiff’s major of the culture and the Plaintiff’s appointment process, including the Plaintiff’s first document screening process. However, the professor and the ○○○○○○, who proposed subsequent appointment of professors of the Plaintiff’s major of the culture and the Plaintiff’s appointment process for the purpose of securing their expertise.

(7) On December 1, 2004, the teachers’ personnel committee held a meeting on December 1, 2004, deliberated on the appointment of candidates for the professors of the Defendant University including the Plaintiff in the form of an difficult debate, and prepared and reported the result to the president by the director of the school affairs division in the form of minutes. Among them, four departments, including the Plaintiff, etc., presented the list of new appointment of multiple professors, and decided on the final appointment of the president. Of which, the portion of the “in the case of the minutes of the teachers’ personnel committee for the applicants of the German language department including the Plaintiff, etc., a week of the end of the minutes of the teachers’ personnel committee for the teachers of the German language department.” (A) The major area of candidates recommended three times the Plaintiff, including the Plaintiff, lacks the major scope of the invited field, and now, the German university has completed a variety of studies, Europe, politics, economy, culture, and culture areas, and the concept of the professors and experts of the Republic of Korea has to be discussed.

C) Although the invited field was assigned to a number of persons (T/O) as a German culture, it was pointed out that there was a lack of major suitability upon recommendation of a German medical major.

(8) The ○○○○○ signed and confirmed the above minutes by fourteen professors present at the meeting. At this time, the head of the ○○ Management Department prepared and attached a written opinion stating that the opinion of the applicant of the German language department is not fair by emphasizing only one minority opinion. (9) On December 9, 2004, the president of the ○○○○○ president decided not to appoint the Plaintiff on the basis of the above minutes.

(10) On December 13, 2004, the Plaintiff was notified of the non-Appointment of this case, and confirmed the above facts through several channels, and submitted a request for reexamination to the president of the Defendant University on March 30, 2005. Accordingly, on April 19, 2005, the president of the Defendant University notified the Plaintiff of the results of deliberation by the teachers personnel committee, and the Plaintiff became aware of more detailed details. (11) The Plaintiff, as the research institute of the Korea National University of Culture and Arts, was involved in the research project of the East German Culture and Arts Foundation's research and development (the settlement of cultural change from the 15-year unified Germany to the 15-year cultural change), and was engaged in various academic research and development projects, such as the Republic of Germany's reading Council, the President of the Korea National Assembly, the director of the Korea National Assembly, the director of the Korea Institute of Culture, the Korean Association, and the President of the Korea Hague Association of Culture and Arts (the 20-year culture and the 4-long culture, etc.).

3. Determination

A. New appointment of a private school teacher is made according to the procedure stipulated in the Private School Act, the pertinent school juristic person’s articles of incorporation or personnel regulations, and its legal nature is an employment contract under the private law. Whether to appoint a person as a teacher depends on the free will or decision of the pertinent school juristic person in principle (see Supreme Court Decision 9Da5571 delivered on December 12, 200, etc.).

Therefore, barring any special circumstance, the Defendant cannot be forced to enter into the relevant appointment contract, and thus, the Plaintiff’s primary claim to appoint the Plaintiff as the full-time professor of the Defendant University, and the first claim to resume the suspended appointment procedure, and the subsequent claim to compensate for damages, are without merit.

B. In addition, since the defendant university stated that there is no eligible person as to the field concerned at the time of the public notice of employment, if it refuses to appoint a teacher for all of the applicants on the grounds that there is no eligible person, the plaintiff cannot contest it (the defendant did not state all the reasons when notifying the non-Appointment of this case).

C. However, the defendant shall observe the matters specified in the relevant statutes or articles of incorporation, personnel regulations, and professors' invitation announcement as to the conclusion of a teacher appointment contract, and in cases where the defendant committed an act contrary thereto and thereby infringed on the right to receive a fair examination of the assistant, it shall be deemed to constitute a tort under the Civil Code, exceptionally.

D. In full view of the contents of Article 4-3(3), (4), and (5) of the Decree on the Appointment of Private School Teachers, which applies mutatis mutandis to new appointment, and the contents of the notice of recruitment of professors as seen earlier, whether it is consistent or appropriate with the major, research, and major, of the recruitment candidate, is placed at the first or second major examination, and thus, a person who is found to fall under a reason for absolute refusal of appointment, among the recruitment candidates, must be excluded from the subsequent appointment procedure, and a person who is highly discriminated in terms of the degree of conformity or suitability, must take the subsequent appointment procedure by reflecting the results of the examination according to the degree of conformity or suitability, with respect to the person who is found to fall under a reason for absolute refusal of appointment, unless special circumstances exist. Furthermore, even if the first and second examination contents of the instant case are considered by three outside experts and the internal professors with respect to the major, the distance between the major and the research business field and the research business field, and the research business field, and thus, it cannot be considered as an absolute reason for refusal of appointment.

This is the reason why the concept of cultural majors has emerged in the German German literature, the practical situation in the university about cultural majors, and the situation that culture as a science should be considered as a dynamic and open area in Germany as a comprehensive concept including literature, and that whether it is a teacher suitable for German cultural research or lectures should be determined by comprehensively considering the major field and achievements up to the doctor's degree of the person concerned, and the achievements of research or lectures thereafter.

E. Furthermore, as a result of the first and second review of the Plaintiff, it was determined to the extent that the Plaintiff’s individual lecture ability on the German culture, its achievements, and internal and external evaluation of the academic community were recommended by the teachers’ personnel committee in terms of major suitability, and thus, it is unlawful that the instant non-election decision was made only on the ground that the Plaintiff’s non-election decision was subsequently made on the ground that he/she is inappropriate to be recommended by the teachers’ personnel committee. However, as the result of the mediation of the difference among professors, the head of the German literature department did not violate Article 6 subparag. 8 of the Personnel Management Regulations, which recommended three times candidates, who are not a single candidate, to the teachers’ personnel committee as a result of the mediation of the difference among professors. In addition, it cannot be deemed that the teachers’ personnel committee re-examines the major suitability and reports the result to the president, and the content or method of the minutes are somewhat inappropriate, but it cannot be readily concluded that the result does not reach the extent of distorted opinions by the majority opinion, thereby violating the personnel regulations by itself).

F. Furthermore, it is reasonable to determine the amount of damages that the Defendant shall pay to the Plaintiff as KRW 10,00,000, in light of the Plaintiff’s pointed out in relation to the legal nature of the instant teacher appointment, the process or content of the examination, and the Plaintiff’s point of view as to the Plaintiff’s decision on the appointment of teaching staff, and the background and content that the Defendant dealt with.

4. Conclusion

If so, the plaintiff's second preliminary claim is accepted within the above scope of recognition, and all the main and the first preliminary claim, and the second preliminary claims are dismissed as they are without merit. It is so decided as per Disposition.

Judges Kim Jae-in

Judges Cho Jae-hwan

Judges Kim Gin-han