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(영문) 대법원 1994. 12. 9. 선고 94누6666 판결
[재심청구기각결정처분취소][공1995.1.15.(984),504]
Main Issues

(a) Where an administrative lawsuit is filed against a decision made by the Teachers Disciplinary Review Committee under the Special Act on the Improvement of Teachers' Status of Private School Teachers, the object of the lawsuit and the other party;

(b) Whether a public official in extraordinary civil service who has been dismissed for a practical reason is identical to a person who has been dismissed by a disciplinary action under Article 33 subparagraph 8 of the State Public Officials Act;

Summary of Judgment

A. In a case where a request for a review is made to the Teachers Disciplinary Review Committee and an administrative litigation is filed against an unfavorable disposition against an intention, such as a disciplinary action against a teacher of a private school, pursuant to Articles 9 and 10 of the Special Act on the Improvement of Teachers' Status, an administrative disposition subject to a lawsuit is not a disciplinary action against a school juristic person, but a decision is made by the Review Committee, and such decision is not an adjudication as an administrative appeal. In this case, the Review Committee, which is the disposition agency, becomes the defendant of an administrative appeal, and such a legal principle does not change since the establisher of the private school in question is changed to the State or a local government (see Article 85(

B. Each ground for disqualification under Article 33 of the State Public Officials Act is an absolute passive requirement to be appointed as a public official, which causes the disadvantage of the fundamental and important status of the public official, and thus, it shall be strictly interpreted in light of the purport of the State Public Officials Act that provides for the guarantee of the status of the public official. Thus, even if ex officio dismissal of public officials in extraordinary civil service is based on grounds of disciplinary reasons that it is similar to removal in effect and actually violates the duty to maintain dignity under the State Public Officials Act, it cannot be the same as being dismissed by disciplinary action under Article 33 subparagraph 8 of the same Act.

[Reference Provisions]

Article 2 of the Administrative Litigation Act, Articles 9 and 10 of the Special Act on the Improvement of Teachers' Status, Article 33 (1) 8 of the State Public Officials Act

Reference Cases

A. Supreme Court Decision 89Nu2103 decided Sep. 12, 1989 (Gong1989, 1518) 92Nu13707 decided Feb. 12, 1993 (Gong1993Sang, 105)

Plaintiff, Appellee

Plaintiff

Defendant, Appellant

Teachers Disciplinary Review Committee of the Ministry of Education

Intervenor joining the Defendant

A school foundation prior to the filing of a petition

Judgment of remand

Supreme Court Decision 93Nu487 delivered on September 10, 1993

Judgment of the lower court

Seoul High Court Decision 93Gu24621 delivered on April 6, 1994

Text

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

Reasons

The grounds of appeal are examined.

The First Ground for Appeal

In case where a request for a retrial is made to the Teachers Disciplinary Review Committee (hereinafter referred to as the "Review Committee") pursuant to Articles 9 and 10 of the Act on Special Measures against the Improvement of Teachers' Status and an administrative litigation is filed against unfavorable measures such as disciplinary action against a private school teacher, the administrative disposition subject to litigation is not a disciplinary action against a school juristic person, but a decision made by the Review Committee (see Supreme Court Decision 92Nu13707 delivered on February 12, 1993). In this case, the Review Committee, which is a disposition agency, becomes the defendant of an appeal litigation (see Supreme Court Decision 92Nu13707 delivered on February 12, 1993). Such a legal principle does not change into the State or a local government after the Review Committee's decision was made (see Article 85 (3) of the Education Act). In addition, even if it is practically impossible to return to a private school teacher due to the change of a school juristic person after the change of the founder, the records in this case are examined as follows.

In the same purport, the court below decided that the lawsuit of this case seeking the cancellation of the disposition against the defendant in the judgment of the court below is legitimate, and there is no error in the misapprehension of legal principles, such as the theory of lawsuit.

The decision of a party member citing the issue is not appropriate in this case where the matter is different.

As to ground of appeal No. 2

The grounds for disqualification under Article 33 of the State Public Officials Act are absolute passive requirements to be appointed as public officials, and they cause disadvantages to the fundamental and important status of the public officials, and thus, it shall be strictly interpreted in light of the purport of the State Public Officials Act, which provides the guarantee of their status. Although ex officio dismissal of public officials in extraordinary civil service is equivalent to removal in effect and actually violates the duty to maintain dignity under the State Public Officials Act, it shall not be the same as that of dismissal under the disciplinary action under subparagraph 8 of the same Article. Therefore, the judgment of the court below to the same purport shall be justified, and there is no misapprehension of the legal principles as to the grounds for disqualification for the appointment of public officials. There is no merit in this paper.

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.

Justices Park Jong-man (Presiding Justice)

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심급 사건
- 서울고등법원 1994.4.6.선고 93구24621

관련문헌

- 조용호 임용결격ㆍ당연퇴직공무원과 퇴직급여 법조 49권 7호 (2000.07) / 법조협회 2000

- 양승두 교원징계와 그 구제제도에 관한 고찰 : 특별법 제10조 제3항의 해석을 중심으로 저스티스 28권 1호 / 한국법학원 1995

- 노기호 교원의 교육권에 관한 연구 한양대학교 1998

- 정태용 결격사유발생의 효과 법제(순간) 492호 / 법제처 1998

- 황한식 공무원의 호봉정정 청구권 및 공무원보수규정 [별표 22] 비고 제3항의 적용범위 행정소송실무연구 (98.12) / 서울고등법원 1998

- 강현호 사립학교교원에 대한 징계와 법적 구제 토지공법연구 29집 / 한국토지공법학회 2005

- 서울고등법원 행정소송실무편람 한국사법행정학회 2003

참조판례

- 대법원 1989.9.12. 선고 89누2103 판결(공1989,1518)

- 1993.2.12. 선고 92누13707 판결(공1993상,1005)

참조조문

- 행정소송법 제2조 (위헌조문)

- 교원지위향상을위한특별법 제9조 (위헌조문)

- 교원지위향상을위한특별법 제10조 (위헌조문)

- 국가공무원법 제33조 제1항 제8호 (위헌조문)

본문참조판례

당원 1993.2.12. 선고 92누13707 판결

본문참조조문

- 교원지위향상을위한특별조치법 제9조

- 교원지위향상을위한특별조치법 제10조

- 교육법 제85조 제3항

- 국가공무원법 제33조

- 국가공무원법 제33조 제8호

원심판결

- 대법원 1993.9.10. 선고 93누487 판결

- 서울고등법원 1994.4.6. 선고 93구24621 판결