Whether a notice of the expiration of the term of appointment to an assistant professor whose appointment period has expired constitutes a disposition subject to administrative litigation as long as the appointment period has expired (affirmative)

An assistant professor of a national or public university who has been appointed as a fixed-term teacher and the term of appointment expires after undergoing a fair examination based on reasonable standards on his/her ability and qualities as a teacher, barring any special circumstance, shall be deemed to have the right to apply for a fair examination on whether he/she is reappointed in accordance with the law or sound reasoning to request a fair examination on whether he/she is reappointed with a reasonable standard, barring any special circumstance. Thus, the notice of the expiration of the term of appointment to the effect that the appointment authority refuses the reappointment of an assistant professor whose term

Article 11(3) of the former Public Educational Officials Act (amended by Act No. 5717 of January 29, 1999) (see current Article 11-2) Article 5-2(2) of the former Public Educational Officials Appointment Decree (amended by Presidential Decree No. 17470 of December 31, 2001) [see current Article 5-2(1)1(c)] Article 2 of the Administrative Litigation Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Law Firm, Kim & Lee, Attorneys Kang Young-soo et al., Counsel for the plaintiff-appellant)

President of Seoul National University (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2000Nu1708 delivered on August 31, 2000

The judgment below is reversed and the case is remanded to Seoul High Court.

Article 11(3) of the former Public Educational Officials Act (amended by Act No. 5717 of Jan. 29, 199) and Article 5-2(2) of the former Public Educational Officials Appointment Decree (amended by Presidential Decree No. 17470 of Dec. 31, 2001) provide that an assistant professor working for a State or a public university shall be appointed for a fixed period of not more than four years and that there is a difference in the case of a professor whose retirement age is guaranteed in principle. The purpose of this provision is to supplement the termination of the retirement age system by allowing a teacher to re-examine his quality and ability at the expiration of the employment period, so that the status relationship as a university faculty member shall be terminated due to the expiration of the employment period.

However, in light of the constitutional provisions on autonomy of university and the legal principle on the status of university teachers and their spirit, the status of university faculty members, who are the subjects of academic research, need to be guaranteed within a certain scope. Although there is no provision on the duty to be reappointed, or the procedure and requirements thereof, the Minister of Education since 1981, issued to each university with a detailed guidelines for personnel management, such as methods for screening of university teachers appointed as a fixed-term teacher, the scope and standards of research achievements, methods of selecting examiners, etc., and presented a certain standard for examination of reappointment. Accordingly, the university has established the standards for examination of reappointment. Accordingly, the university teachers whose term of appointment expires have been reappointed in accordance with the above personnel management guidelines and the standards for examination under the provisions of each university. In full view of the various circumstances indicated in the records, such as the actual condition and social awareness of the reappointment of university members appointed as a fixed-term teacher, and the term of appointment of a national university and a public university whose term of appointment has expired after a fair examination based on their abilities and qualities, the Minister of Education has reasonable authority to appoint or appoint an assistant.

Unlike this, Supreme Court Decision 96Nu4305 Decided June 27, 1997, which held that the university faculty members appointed for a specified period cannot be deemed to have the right to expect reappointment due to the expiration of the term of appointment, and that even if the appointment authority made a decision not to re-appoint a teacher according to the deliberation and decision of the personnel committee and notified it, it cannot be deemed an administrative disposition subject to administrative litigation, shall be amended to the extent inconsistent with this.

Nevertheless, the court below rejected the lawsuit in this case seeking the decision and the revocation of the decision on the ground that the above decision and the notification cannot be deemed an administrative disposition subject to administrative litigation, even though the defendant decided not to be reappointed to the plaintiff who was appointed as the ○○○○○○ University assistant professor for a period of four years, and notified the plaintiff that the term of appointment expired as of August 31, 1998, the court below rejected the lawsuit in this case, which is unlawful. The court below erred by misapprehending the legal principles as to the disposition of refusal of reappointment against fixed-term teachers, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The final judgment of the Chief Justice of the Supreme Court (Presiding Justice) shall be delivered with the assent of all Justices Cho Jae-chul-chul, the assent of all Justices Kim Yong-dam (Presiding Justice).