Fixed-Term Employment of UniversityFaculty Members

(15-1 KCCR 176, 2000Hun-Ba26, February 27, 2003)

Contents of the Decision

1. The importance of education and the meaning of Article 31(6) of the Constitution mandating that the status of teachers shall be determined by statute.

2.Whether Article 53-2(3) of the former Private School Act (Amendedby Act No. 4226 on April 7, 1990, Prior to Amendment by Act No. 5274 on January 13, 1997; hereinafter referred to as the'provisionat issue in this case') that permitted the employmentof a faculty member at a private university for a fixed term pursuant to the bylaws of such university educational foundation is in violation of the principle of statutory status of the teachers (affirmative).

3. Decision of nonconformity to the Constitution, on the ground thata holding of simple unconstitutionality of the provision at issue in this case would be tantamount to a decision holding the fixed-termemployment itself unconstitutional.

Summary of the Decision

1. Education is a fundamental means to realize the culture statesought by the Constitution, as itallows individuals to develop indi-

viduality in every field of life through awakening of the individualpotentials, lays the foundation for the political culture for an effectivefunctioning of democracyby fostering the qualification of the constit-

uents as democratic citizens, and serves as a forum to transmit theoutcome and achievement ofacademic research. In light of the im-

portant functions as such assumed by education, the Constitution mandates under Article 31(6) that fundamental matters pertaining tothe educational system including in-school and lifelong education, ad-

ministration, finance, and the status of teachers be determined by statute. Therefore, fundamental matters pertaining to the status of teachers which should be determined by the legislators in the form of a statute include matters pertaining to the minimum obligation to protect so that the status of a teacher may not be unjustly deprived.

2. A. The provision at issue in this case includes no directions at all as to whether a teacher is entitled to be reemployed uponcompletion of a fixed employment term as long as there is no signif-

icant defect or cause, as to the standard or requirement to exclude such teacher from reemployment, or as to the procedure for a priornotice on the ground of not extending further employment. The pro-

vision at issue in this case is also silent with respect to the procedureto be adopted should a relief be sought against an unjust rejectionof reemployment. Therefore, the provision at issue in this case en-

compasses much room for abuse and misuse to remove a teacher critical of the private educational institution or for other subjectivepurposes of someone with the authority to make employment decisions,deviating from the original legislative purpose of fixed-term renewableemployment of preventing the faculty from being professionally unpro-

ductive that might result from tenure protection, promoting the researchatmosphere, and improving the quality of the college education. First,although a decision pertaining to the renewal of employment shouldbe subject to the faculty personnel committee as an important matterof personnel decision, in many cases such decisions were made withoutany faculty personnel committee review at all or with onlypro formaprocedures, and, in some cases, a renewal of employment at the end of the fixed employment term was rejected by the final decisionmaker with no specific reason despite the faculty personnel committee's recommendation or approval of renewal. Second, as theprovision at issue in this case is silent as to the grounds for rejectingrenewal or the procedures for relief, there is no countermeasure torelieve a victimized faculty member should a private university rejectto renew employment under uncertainstandards open to arbitrary inter-

ferences without providing in its bylaws any relatively objective standards such as the research product or lecturing capacity as the grounds for denial of renewal. Third, in light of the experience ofhuman history that absolute and unfettered discretion inevitably causesabuse thereof, providing a means of relief to protect university facultymembers from an arbitrary denial of renewal is a minimum obligationon the part of the state. That is, informing the grounds on the part of the decisionmaker for not renewing the employment contract for its faculty member and providing an opportunity for such faculty member to explain as to such grounds is a minimum requirement of due process. Fourth, setting forth grounds for denial of renewal under objective standards and providing an opportunity to state his or her position and challenge the result of the review for a faculty member whose renewal is rejected in order to eliminate arbitrary review by someone with authority to make employment decisions isnot excessively burdensome on the part of the decisionmaker; further,providing a relief procedure to challenge the lawfulness of a decisionnot to renew in no way hinders the achievement of the legislativepurpose sought under the fixed-term employment of university facultymembers.

B. As reviewed above, in light of the important functionsassumed by universities in modern society and the request for minimumprotection

against an unjust deprivation of the status of university faculty members, the provision at issue in this case is undeniably inviolation of the principle of statutory status of the teachers of Article31(6) of the Constitution, as this provision lacks any objective standardapplicable to a decision to not renew the employment, any opportunityto be heard on the part of a teacher whose employment is not beingrenewed, or a prior notice of the decision to not renew the employment, and, further lacks any institutional device to challenge a decision to not renew.

3. The unconstitutionality of the provision at issue in this case does not lie in the fixed-term employment of faculty members itself. Instead, the unconstitutionality of the provision at issue in this caselies in completely blocking a wayfor a faculty member whose employ-

ment is not renewed to seek any relief therefrom, by failing to provideany regulations as to the ground for a decision to not renew, relief procedure prior to a final decision to not renew, or relief procedure to challenge an unjust denial to renew. Here, however, a holding ofsimple unconstitutionality of the provision at issue in this case wouldbe tantamount to a decision holding that the fixed-term employment of faculty members itself is unconstitutional. Therefore, we hereby issue a decision of nonconformity of the provision at issue in thiscase to the Constitution, instead of a decision of simple unconstitution-

ality. The legislators should, with all due deliberate speed, eliminatethe unconstitutionality of the provision at issue in this case, by revisingthe provision to include such procedures available both prior to and subsequent to a decision to not renew the employment of a facultymember at the conclusion of the original fixed-term employment underthis provision and a relief procedure to challenge such decision to not renew.

Dissenting Opinion of Justices Han Dae-hyun and

Ha Kyung-chull

Article 31(6) of the Constitution mandates that the status of teachersbe determined and regulated by statute, not only to protect the rightsand interests of the teachers or to protect the teachers against unjustinfringement thereupon by governmental powers, but also to effectivelyguarantee the citizens' basic right to education. Therefore, the subjectmatter of the statutes enactedbased on Article 31(6) of the Consti-

tution may concern not only the rightsand interestsof teachers in-

cluding the guarantee of the status and the economic and social postures of the teachers, but also the obligation of teachers such as a prohibition of conduct potentially impeding upon the citizens' rightto education. Furthermore, the statutes may also concern the limitationof the basic rights of the teachers. Thus, pursuant to the provisionat issue in this case, the education foundation of private universities,in recruiting faculty members,

may either adopt a tenure system witha guarantee of employment through retirement, or adopt a fixed-termemployment mechanism. When a private university adopts a fixed-termemployment system, it may further freely choose a mechanism most suitable for itself on its own judgment among various employment systems, such as (i) a fixed-term employment with an automatic renewal at the successful completion of the original term, and (ii) afixed-term employment where the employment relationship automaticallycloses at the end of the original term and a renewal of the employmentis at the sole discretion of the decisionmaker. The legislative purposeof this provision is sufficiently agreeable as the above mechanism is a system designed to maximallyguarantee the independence of edu-

cation at each private university and the autonomy of the privateuniversity uponconsideration of the particularities of private univer-

sities compared with national or public universities. Therefore, althoughthe prior and subsequent procedures argued for by the majority ofthe Court are understandably to further protect the status of the teachersat private universities, lack of such devices alone may not render the provision at issue in this case unconforming to the Constitution for impairing the essence of the principle of the statutory status of teachers.

---------------------------------

Parties

Complainant

Yoon Byung-man

Counsel of record: Chun Young-ha and 1 other

Original Case

Supreme Court, 99Da41398, wages, etc.

Holding

Article 53-2(3) of the former Private School Act (Amended by Act No. 4226 on April 7, 1990, Prior to Amendment by Act No. 5274 on January 13, 1997) does not conform to the Constitution.

Reasoning

1.Overview of the Case and the Subject Matter of Review

A. Overview of the Case

(1)The complainant was employed as a faculty member by AjouUniversity operated by an educational foundation of Daewoo in its division of business administration for a ten-year term from March 1, 1983 to February 28, 1993. Subsequently, the complainant wassuspended from the position on March 1, 1984, and then was dischargedfrom the position on October 31, 1984 by the administration. Upondischarge, the complainant filed a lawsuit against the above education-

al foundation and obtained a judgment partly in his favor to the effectthat the 'Daewoo Educational Foundation should pay to the complainantin the amount of the wages for the period between March 1, 1984 andFebruary 28, 1993 until the petitioner's reinstatement,' which judgmentwas confirmed by the Supreme Court in 92Da30801 issued on July 29, 1994. However, as the educational foundation did not reinstate the complainant, the reinstatement of the status became no longer possible upon the completion of the original employment term.

(2)Subsequently, thecomplainantfiled a lawsuit titled97GaHab2514in the Suwon District Court against the educational foundation, seekingthe payment of wages or damages in the comparable amount and the retirement payment or the damages in the comparable amount, or thedamages for emotional distress, on the ground of invalid discharge of his employment and unlawful failure to reinstate him in the originalposition.While his appeal was pending at the Supreme Court(99Da41398), the complainant requested the constitutional review of Article 53-2(3) of the former Private School Act (Amended by Act No. 4226 on April 7, 1990, Prior to Amendment by Act No. 5274 on January 13, 1997; hereinafter referred to as the 'provision at issue in this case'). The Supreme Court rejected the complainant's appeal on the merits on February 11, 2000 and also rejected the above request for constitutional review (2000Kagi18). The complainant thereupon filed this constitutional complaint with the Constitutional Court on March 14, 2000, pursuant to Article 68(2) of the Constitutional Court Act.

B. Subject Matter of Review

(1) The content of the provision at issue in this case, which is the subject matter of review, is as follows:

Article 53-2 ofthe former Private School Act(Appointment and Dismissalof Teachers Other Than Heads of Schools)

(1)-(2) [omitted]

(3)Faculty members of college educational institutions may beemployedfor a fixed term pursuant to the bylaws of the respective

educationalfoundations.

(2) The provision at issue in this case has subsequently been amended as follows:

Article 53-2(3) ofthe former Private School Act (Amended by ActNo. 5274 on January 13, 1997)(Appointment and Dismissal of TeachersOther Than Heads of Schools)

(1)-(2) [omitted]

(3) Faculty members of college educational institutions may be employed for a fixed term pursuant to the bylaws of the respective educational foundations. In this case, theprovisions concerning the term of office applying to faculty membersof national and public college educational institutions shall applymutatismutandis.

Article 53-2 ofthe Private School Act (Amended by Act No. 6004on August 31, 1999)(Appointment and Dismissal of Teachers Other Than Heads of Schools)

(1)-(2) [omitted]

(3) Faculty members of college educational institutions may be employed by fixing contract terms such as term of office, salary, conditions of service, work and merit agreement onsuch terms and conditions as the bylaws of the respective educa-

tionalfoundations concerned may determine. In this case, with

respect tothe term of office, the provisions concerning the termof office applyingto faculty members of national and public col-

lege educational institutions shall applymutatis mutandis.

(4) Where the term of office for faculty members employedpursuantto paragraph (3) expires, the person who has the power

to appoint anddismiss shall determine whether to reappoint such

facultymembers afterdeliberationby thefacultypersonnel com-

mittee.

Addenda (1) (Enforcement Date)

This Act shall enter into force on the date of its promulgation:Provided, That the amendments to Articles 21(2) and (4) and 53-4 shall take effect on March 1, 2000 and the amendments to Article 53-2(3) shall take effect on January 1, 2002.

Addenda (2) (Transitional Measures on Contractual Appointment)

Faculty members appointed for a specified period pursuant tothe former provisions shall, notwithstanding the amendments to Article 53-2(3), be governed by the former provisions until their terms of appointment expire.

2. Grounds for the Constitutional Complaint, Grounds forRejecting the Request for Constitutional Review by the

Supreme Court and Opinions of the Related Parties

A. Summary of the Grounds for the Constitutional

Complaint

As Article 31(6) of the Constitution mandates that the fundamen-

tal matters pertaining to the status of teachers be determined andregulated by statute, once a fixed-term employment system is adoptedfor the employment of university faculty members, the statute shouldalso provide for such matters concerning the obligation to review for renewal, the standard applicable to a decision denying renewal,and the relief procedure availableto a faculty member whose employ-

ment is not renewed. However, the provision at issue in this case does not provide for any of such matters that are fundamental to the status of teachers and is thereby in violation of the principle of the statutory status of teachers mandated by Article 31(6) of theConstitution, and is thus unconstitutional, violating the right to equality, the academic freedom, the right to trial and judicial process, and the principle of statutory work conditions, protected by the Constitution under Articles 11, 22, 27(1) and 32(3), respectively.

B.Grounds for Rejecting the Request for ConstitutionalReview by the Supreme Court

The provision at issue in this case intends to permit a person withauthority to make personnel decisions to determine whether or not torenew a contract of a faculty member upon completion of suchfacultymember's internal employment term upon reviewing the person's qual-

ification as a faculty member. As such, the provision at issue inthis case confirms the autonomy of the faculty personnel decisionmakerand does not regulate the research activities or methodologies of the faculty. Therefore, the provision at issue in this case is legitimatein its legislative purpose and within the limits of legislative discretion,and is thus not in violation of Article 22(1) or 31(6) of the Constitution.

The relationship concerning the status of a teacher at a private school is private in nature and is fundamentally different from thatof a teacher at a national orpublic university. Therefore, the provi-

sion at issue in this case does not violate the right to equality ofArticle 11 of the Constitution. Also, the general laws regulating laborrelations cannot squarely apply to the employment relationship of a teacher because the content of the service that a teacher renders is education, whose primary beneficiaries are the students who in turn have the right to be educated. Therefore, the provision at issue in this case does not violate

the principle of statutory work conditions stipulated in Article 32(3) of the Constitution.

C.Summary of the Opinion of the Minister of theMinistry of Education (as modified to the Ministry of Education and Human Resources Development pursuant to the Government Organization Act as revised by Act No. 6400 on January 29, 2001)

(1) A constitutional complaint pursuant to Article 68(2) of the Constitutional Court Act should be filed within fourteen(14) days of the rejection of the request for constitutional review. However, theconstitutional complaint in the instant case at bar was filed on March14, 2000, past fourteen(14) days by far of the Supreme Court's rejec-

tion on February 11, 2000, and is therefore procedurally improper and unjusticiable.

(2)Education at colleges and universities is different from educa-

tion in elementary and middle schools, in that the former intends to seek profound academic theories and their application methodologies for the development of the nation and the human society and to cultivate personality and leadership, whereas the latter focuses on the transmission of the generally approved fundamental knowledge to the students. The authority to appoint and remove a faculty member at a privateuniversity is part of the unique authority of the educational foundation, as the relationship between a faculty member at a private universityand the educational foundation is a contractual employment relationshipunder private law.

The academic freedom of college and university faculty should be discussed in relation to the guarantee of the right to learn of the students who are the consumers of education and to the university's public responsibility to perform sincere and substantial research. It is not appropriate to apply general labor relations law to facultymembers as the employment relationship pertaining to faculty membersis different from the employment relationships in general, due to the special position of the faculty to protect more than anything else theright to learn of the students who are the objects of education throughincessant research and greater expertise. Further, any legal disputeconcerning the appointment and removal of faculty members at privateuniversities may be readily resolved in a civil litigation. Therefore, the provision at issue in this case is not unconstitutional.

3. Review on the Legal Prerequisites

Aconstitutional complaint pursuant to Article 68(2) of the Consti-

tutional Court Act should be filed within fourteen(14) days of the date of rejection of a request for constitutional review of the subjectlegal provision (Article 69(2) of the Constitutional Court Act). Here,the 'date of rejection' refers to the date on which the decision rejectingthe request for constitutional review is served upon the requesting party, unless there have been extraordinary circumstances (1 KCCR131, 134, 89Hun-Ma38, July 21, 1989). The「certificate of delivery ofmail」by the Korea Post indicates that a certified copy of the SupremeCourt's decision rejecting the above request for constitutional reviewwas served upon the complainant on March 2, 2000. Therefore, thepetitioner's constitutional complaint filed with the Constitutional Courton March 14, 2000 is timely andhas satisfied the procedural require-

ment in this regard.

4. Review on the Merits

A. Legislative Purpose and Legislative History of the Fixed-term Employment System

(1)The provision at issue in this case provides that the " facultymembers of college educational institutions may be employed for afixed term pursuant to the bylaws of the respective educational foun-

dations." This provision intends to allow employment of faculty members for collegiate educational institutions for a fixed term andto permit the educational foundation as a decisionmaker for personnelmatters to determine whether or not to renew employment upon com-

pletion of the original employment term by reviewing the individual faculty member's qualifications and appropriateness as a teacher, in order to raise research productivity of the faculty, lift the research atmosphere, and improve the quality of the collegiate education at the same time (Seethe First Minutes of the Culture, Education, and Communication Committee of the 93rdNational Assembly on July 4, 1975; 10-2 KCCR 116, 145, 96Hun-Ba33, etc., July 16, 1998). TheSupreme Court, upon this matter, has interpreted that the decision ofwhether or not to renew employment of a faculty member upon com-

pletion of the original employment term ultimately belongs to the unique discretion of the decisionmaker for personnel matters, as the education law requires highly professional knowledge, great teaching capabilities, and mature personality, thereby necessitating a decisionbased on various factors as above on whether or not to renew em-

ployment upon completion of an employment term (SeeSupreme CourtDecision 96Da7069 delivered on June 27, 1997 (Gong 1997(Vol.II), 2315)).

(2) Article 9(3) of the Public Educational Officials Act enactedon July

23, 1975 by Act No. 2774 in the form of a National Assembly-

initiated legislation under the 7th amended Constitution provided that"faculty members of college educational institutions (including teachers'colleges and junior colleges) shall be appointed for a specified periodas follows: 1. Professors and Associate Professors: 6 to 10 years, 2. Assistant Professors and Full-time Lecturers: 2 to 3 years, 3.Assistant Lecturers: 1 year," thereby adopting a fixed-term employment

system in recruiting faculty members at the national and public uni-

versities. As a transitional measure for the implementation of thissystem, those who were in the position as faculty at the national andpublic universities at that time were subjected to a renewal by the end of February of 1976. Also, a faculty renewal review committeewas established, and the necessary matters concerning its organization,function, and operation were to be determined and regulated by pres-

idential decree.

Article 53-2 of the Private School Act amended on July 23, 1975by Act No. 2775 also providedthat "faculty members of college edu-

cational institutions, depending on their respective positions, shall be employed for a fixed term not more than 10 years pursuant to the bylaws of the respective educational foundations," thereby requiringprivate colleges and universities to employ the faculty members throughthe fixed-term employment system. As a transitional measure, Article2 of the addenda provided that "faculty members who are in office at colleges or universities (including teachers' colleges and junior colleges) at the time of the enforcement date of this Act shall be reappointed pursuant to the provisions of Article 53-2 on the last day of February 1976."

Subsequently, Article 53-2(2) of the Private School Act amendedon February 28, 1981 by Act No. 3373 provided that "faculty membersof college educational institutions, depending on their respective posi-

tions, shall be employed by a head of each institution for a fixedterm not more than 10 years pursuant to the bylaws of the respectiveeducational foundations," thereby providing the 'head of the private colleges or universities' to have the authority to make personnel de-

cisions including appointment and removal of faculty members. Mostrecently, throughrevision byActNo. 4226 on April 7, 1990, the pro-

vision at issue in this case came into effect.

(3)Upon introduction of the fixed-term employment system, throughthe initial renewal process in February of 1976, 212 out of 4,260 individuals (4.97%) did not have their employment renewed within the national and public universitysystem, and 104 out of 5,511 indi-

viduals (1.89%) did not have their employment renewed by private colleges and universities (additionally, 2.4% of the faculty members voluntarily resigned). Also, from 1986 through 1997, 116 individualfaculty members (approximately 0.5%) failed to have their employmentrenewed;

among them, 12 of them were in the national and public university system and 104 of them were in private colleges and uni-

versities,pursuant tothe materialsprovided by the Ministry of Edu-

cation. On the other hand, according to recent materials provided bythe Korean Council for University Education and the Korean Councilfor College Education, in private colleges and universities, two(2) fullprofessors, seventeen(17) associate professors, thirty-five(35) assistant professors, and forty-five(45) full-time lecturers failed to renew theiremployment, during the period of 2000 through 2002.

B. Employment of Faculty Members at Collegiate

Educational Institutions Overseas

(1) In the United States, although various systems are utilizedin employing and retaining collegiate faculty members, the norm is thatthe faculty is employed under an initial one(1)-year contract and thenbecomes tenured through retirement upon successful completion of acertain probationary period unlessthere is an extraordinary circum-

stance. Pursuant to the 1940 Statement of Principles on AcademicFreedom and Tenure adopted in 1940 through a series of conferencesbetween the Association ofAmerican Colleges and the AmericanAs-

sociation of University Professors,it is recommended that the proba-

tionary period may not exceed seven(7) years in aggregate, and, that, when a faculty member is not tenured upon completion of the probationary period, a minimum of one(1)-year notice be given to such individual prior to the completion of the probationary period.

(2) In the United Kingdom, all faculty members were employed on a tenure basis with a guarantee through retirement throughout the 1970s. However, the conservative administration led by Prime Minister Thatcher enacted the educational reform act in 1988, under which new faculty members are put on a three(3)-year probationaryperiod and then become tenured through a strict renewal review. Underthis system, approximately 90% of the faculty members become tenured. When a faculty member is not granted tenure, a notice is giventhree(3) months priorto discharge. In addition, concerning the require-

ments for faculty recruitment, promotion, and tenure, transparency and fairness is secured under objective standards and procedures, pursuant to the rules adopted and affirmed through the agreement between the Association of University Teachers and the Committee of Vice-Chancellors and Principals.

(3) In Germany, most universities are national universities and, while a fixed-term employment system is adopted in employing theresearch assistants and private tutors of Privatdozents having intimatelyto do with

the succession of academic traditions, once an individual gains the status of professorship, such individual obtains the status of a public official with a guarantee through retirement, thereby not being discharged out of position or transferred to other institutions against such individual's will.

(4) In France, an objective institution of the university reviewcommittee performs a review upon the research product of the candi-

dates and the faculty members alltogether for both an initial recruit-

ment and a promotion to the higher level. While a strict requirementand procedure is applied to the initial recruitment of faculty members, instead, France does not adopt a fixed-term employment system in employing and retaining faculty members. Thus, whereas the initial recruitment process for a faculty member is difficult to pass, onceemployed, all faculty members are tenured with the guarantee throughretirement.

(5) In Japan, there is no provision concerning the retirement age applicable to the national or public university faculty members, and each university has its own rules concerning retirement age. For example, Tokyo University sets sixty(60) years of age as the retire-

ment age. Also, although there is no provision concerning the methodof employing faculty members in the Private School Act of Japan,most private colleges and universities guarantee the position of facultythrough retirement.

C.Unconstitutionality of the Provision at Issue in thisCase

When a legal provision is alleged to violate various constitutionalprovisions or infringe upon various basic rights at the same time,the unconstitutionality of such legal provision should be assessed and reviewed beginning from the constitutional provision in the most intimate relationship to the subject matter of the case or the basic right the infringement upon which is the most egregious, consideringthe intention of the complainant who alleges such violation of the constitutional provisions or such infringement upon the basic rights and the objective motives of the legislators (See10-1 KCCR 327,337, 95Hun-Ka16, April 30, 1998; 14-1 KCCR 410, 426, 2001Hun-Ma614,April 25, 2002). In the instant case, the alleged unconstitutionalityof the provision at issue in this case is in the most intimate relationshipwith the principle of the statutory status of the teachers, consideringthe relief sought and intended by the complainant and the legislative intent as previously reviewed. Therefore, we first review whether or not the provision at issue in this case violates the principle of the statutory status of the teachers.

(1)Education stimulates and develops one's potential, thereby having

such individual extend his or her personality in each aspect of life. Especially in a modern society with highly specialized anddeveloped industries, education functions as an indispensible prereq-

uisite for each of the individuals in obtaining various abilities and qualifications required for vocational activities to independently meet life's demand. Therefore, a guarantee of an equal opportunity for education serves as an important means to realize a social state, in implementing substantive equality in vocational and economic lives.Also, education lays a foundation for the political culture demanded fora smooth operation of democracy by fostering the qualities of the constituents as democratic citizens, and is a fundamental means to realize a culture state that our Constitution pursues by functioning as the forum for the inheritance of academic achievements.

In light of such important functions that education assumes, the Constitution provides under Article 31 that all citizens shall have anequal right to receive education corresponding to their abilities (Section1); that all citizens with children under their support shall be respon-

sible at least for their elementary education and other education as provided by statute (Section 2); that the state is responsible for compulsory education that is free of charge and the promotion ofeducation for life (Sections 3 and 5); that independence, expertise andpolitical impartiality of education, and the autonomy of the institutionsof higher learning shall be guaranteed (Section 4); and that fundamentalmatters pertaining to the educational system including in-school and lifelong education, administration, finance, and the status of teachers shall be determined by statute (Section 6).

(2)The specific content of Article 31(6) mandating that the "fun-

damental matters pertaining to the status of teachers shall be deter-

mined by statute," in relation to faculty members at colleges and universities, is as follows.

(A)Full-time 'faculty members' at colleges and universities arepeople who educate and guide students and do academic research orpeople who only carry outacademic research at colleges and univer-

sities including industrial colleges, teachers' colleges, junior colleges, air and correspondence colleges, and technical colleges, and they are classified into professors, associate professors, assistant professors,and full-time lecturers (Article 9 of the Framework Act on Education; Articles 2, 14, and 15 of the Higher Education Act). Teachers or faculty members at private institutions for higher learning including colleges and universities, as well as those of the national and public universities are included in the definition of the teachers in Article 31(6) of the Constitution. The 'status' of teachers is an inclusiveconcept encompassing the social treatment they receive depending uponthe perception toward the importance

of their functions and the per-

formance capabilities, or the work conditions, guarantee of the status, and compensation and other material benefits (3 KCCR 387, 417, 89Hun-Ka106, July 22, 1991).

(B)The 'fundamental matters' pertaining to the status of teachersshould be interpreted to mean important matters necessary for the teachers' independent, professional, and neutral education in light ofthe intent of the Constitution particularly mandating a statutory statusof teachers compared with those in other professions and the special nature of education which is the content of the service provided by teachers. Therefore, such fundamentalmatters mandated to be deter-

mined and regulated by statute include,inter alia, matters concerninga minimum obligation of protection against unjust deprivation of the status of teachers. Should the status as a teacher be subjected to arbitrary dispositions of governmental power or the founder or other makers of personnel decisions of private educational institutions, it may be difficult to exclude the influence of such decisionmakers from the teacher's education of the students. This may cause aresult contrary to the constitutionalprinciples of independence, exper-

tise, and politically neutral education that education should be led and performed by educators and educational experts unhindered by outside political influence. This point has an even greater meaning for teachers or faculty members at institutions of higher education such as colleges and universities, as the main task of such higher education does not end with a mere delivery of generally accepted conventional knowledge or perceptions but extends further to seek new perceptions based upon a critical assessment thereof.

(C)The 'statute' within the meaning of the above constitutionalprovision is a statute under its formal definition legislated by theNational Assembly endowed withdemocratic legitimacy as therepre-

sentative of the people. The constitutional mandate that specificallythe status of teachers as well as the educational system, as the humanand material foundations of education respectively, be determined andregulated by statute legislated by the National Assembly indicates the constitutional perception that matters concerning the status ofteachers or educators have a significant meaning in accomplishing theunique mission of education, to the extent that such matters may not be left under the decisions of the executive branch or belong to the realm of private autonomy.

(D)In summary, in light of the spirit ofthe principle ofstatu-

tory status of teachers as stated above, it is confirmed that fundamen-

tal matterspertaining to the status of teachers mandated to be deter-

mined and regulated by the legislators in the form of statute includesuch matters concerning the minimum obligation of protection againstunjust deprivation of the status of teachers.

(3)Upon the issue of whether the provision at issue in this casesatisfies the principle of statutory status of teachers with respect to the protection of the status of educators at institutions of higher education

(A) The provision at issue in this case permits a possibilitytoadopt a system under which aprivate university's educationalfoundation

may employ a faculty member for a 'fixed term' pursuant toits by-

laws, and such educational foundation may thus determine whetheror not to renew employment of such faculty member upon completionofthe initial employment term by reviewing the qualifications and appro-

priateness of the faculty member. Although a fixed-term employment system may provide relatively less protection of the status than atenure system for university faculty members, the fixed-term employ-

ment system and the tenure system respectively have both meritsand disadvantages, both in the nation'sperformingitsobligationto pro-

motesciencefor the realization of a culturestateand as amethodol-

ogy to realize the right to be educated retained by the citizens(See10-2 KCCR 116, 148, 96Hun-Ba33, etc., July 16, 1998).Therefore, as the legislators retain the discretion to choose between these two systems, the adoption by the legislators of a fixed-term system for the sake of securing the effectiveness of the citizens' right to beeducated does not by and in itself render such choice unconstitutional.Yet, the provision at issue in this case does not provide any direc-

tions with respect to whether or not a faculty member is entitled to renewal upon completion of the initial employment term unless there is a material defect, the standard or requirement as to the exclusionfrom the renewal, a procedure to provide any prior notice of the groundfor denial of renewal, or the relief procedure to challenge unjust denialof renewal.

(B)The provision at issue in this case, therefore, encompassesample possibilities of misuse and abuse by providing a means to removea faculty member who is critical of a private institution's educationalfoundation or for personal and subjective purposes of the decisionmakers,deviating from the originallegislative purpose of the fixed-termem-

ployment system of increasing productivity of the faculty, promotingthe research environment, and improving the quality of the collegiateeducation.

First, a decision of renewal or denial thereof for a faculty memberis an important matter concerning personnel matters and, therefore, such decision should be subjected to review by the faculty personnelcommittee. However, under the old law that did not include a provi-

sion as in the current Private School Act (Article 53-2(4)) obligatinga decision as to renewal of a faculty member to be subjected to a faculty personnel committee upon completion of a fixed employment term (SeeSupreme Court Decision (full bench decision) 95JaeDa199 delivered on May 18, 2000 (Gong 2000(Vol.II), 1473)), there were many cases where

there was no or only apro formareview processat the faculty personnel committee, and there was even a case wherethe final decisionmaker denied to renew the employment relationshipfor no particular reason against the faculty personnel committee's re-

commendation to renew. This shows that the educational foundationhas ample influence upon thecomposition ofa faculty personnelcom-

mittee asthe forming of a faculty personnel committee itself is sub-

jected to the regulations of the educational foundation's bylaws (Article53-3(2) of the Private School Act) and that, under such circumstance,a faculty personnel committee cannot serve as a guard against an arbi-

trary operation of the fixed-term employment system.

Second, due to the silence of the provision at issue in this case with respect to the grounds for denial of renewal or relief procedurethereagainst, there is no alternativefor substantively relieving a vic-

timized faculty member, when the bylawof a private collegiateinsti-

tution denies to renew the employment relationship under an uncertainstandard with ample room for arbitrary intrusion without setting forthany relatively objective standards for denial of renewal such as the research product or teaching capabilities of a faculty member. That is, Ministry of Education Appeal Commission for Teachers is of the position that a denial of renewal of faculty employment relationship may not be a subject matter for review other than a failure to abide by the employment term fixed under the bylaw of an educational foundation or the original employment contract (SeeMinistry of Education Appeal Commission for Teachers 94-203 Revocation of Denial of Employment Renewal Case, 96-94 Affirmation of Nullity of Expiration Notice for Employment Renewal Case, etc.). Also, the Supreme Court held that a faculty member of a private universityemployed under a fixed-term employment system pursuant to the pro-

vision at issue in this case automatically loses the status as a facultymember upon completion of the original employment term regardless of any particular procedure such as a decision to deny renewal, aslong as there is no execution of a renewal contract absent a provisionwithin the bylaw or the personnel rules of an educational foundationguaranteeing a renewal, and that such faculty member whose employ-

ment relationship is not renewed does not have a standing to seekaffirmation of nullity of a decision of non-renewal and notice thereof, as such decision and notice by the educational foundation toward the faculty member following the above automatic loss of the status merely functions to confirm and notify such automatic closure of the employment relationship upon completion of the original employmentterm and does not thereby cause any legal effect between the facultymember and the educational foundation (Supreme Court Decision 97Da3132 delivered on June 10, 1997 (Gong 1997(Vol.II), 2132).

Third, in light of the experience of human history that absolute and unfettered discretion is to be abused, it is a minimum obligation to protect on the part of the state to provide a relief procedure forthe protection of university faculty members against an arbitrary denialof renewal of employment relationship. That is, it is the minimal requirement of due process to obligate a decisionmaker to explainwhy a particular faculty member is not being renewed and to providesuch faculty member with an opportunity to be heard. Should a decision of denial of renewal be secretly made behind closed doors and should there be no notice thereof, there can be no device to check upon such arbitrary decisions.

Fourth, considering that there should be a reasonable ground for a decision not to renew a university faculty member's employmentrelationship and that there can befound no reason for the decision-

maker to fear disclosure of such ground as long as the ground is reasonable, it is not an excessive burden upon the decisionmaker to require an objective standard for denial of renewal and to provide a faculty member whose renewal is being denied with an opportunity to state his or her position and challenge the denial, in order to eliminate arbitrary judgment by a decisionmaker in the process of renewal review. Further, providing for a relief procedure to dispute the lawfulness of a decision of denial of renewal does not pose any hindrance upon the achievement of the legislative purpose sought by the fixed-term employment system as applicable to the university faculty members.

(C) As stated above, in many of other developed nations, nosystem of fixed-term employment or subsequent renewal is currentlyadopted, and, where they adopt a fixed-term employment system, theyguarantee tenure through retirement above certain ranks in position.In the United Kingdom and the United States where contractual rela-

tionships widely apply even in public relations, although collegiatefaculty members are recruited and retainedunder a fixed-term employ-

ment system, there are objective standards and procedures both tobenefit from the merits of the fixed-term employment and to supplementthe disadvantages thereof, through negotiations and agreements betweenthe association of the faculty members and the association of thecolleges and universities. Furthermore, once a probationary period issuccessfully completed, a tenure or retirement guarantee is provided by way of the guarantee of the status that is indispensible for the unfettered freedom of research and science.

When it is practically difficult to move to different universities inKorea, if faculty members are subject to continuous renewals through retirement, the faculty members cannot but become submissiveto the decisionmakers in order to be renewed, as the possibility to move into a new profession reduces as the faculty members become older. In addition, uncertain standards for renewal decisions leavemuch room for a subjective

judgment, and the lack of relief proceduresboth before and after the decision to unjustly not renew correspondinglyand seriously threatens the independence required for freedom of researchand science. This aspect becomes even more conspicuous assuming that the provision at issue in this case might be used as an excusefor permitting denial of renewal due to the expression of philosophical, political, or ideological beliefs of an individual faculty member.

(4)As reviewed above, in light of the important functions assumedby universities in modern society and the request for a minimum protection against an unjust deprivation of the status of university faculty members, the provision at issue in this case is undeniably inviolation of the principle of statutory status of the teachers of Article31(6) of the Constitution, as this provision lacks any objective standardapplicable to a decision to not renew the employment, any opportunityto be heard on the part of a teacher whose employment is not beingrenewed, or a prior notice of the decision to not renew the employment,and, further lacks any institutional device to challenge a decision tonot renew. Once it is held that the fixed-term employment system as provided under the provision at issue in this case is in violation ofthe principle of statutory status of the educators, we do not further review separately the violation of the right to equality, the academic freedom, the right to trial, and the requirement of statutory workconditions as alleged by the complainant that may possibly be causedas a result of the violation of the principle of statutory status of educators.

D. Decision of Nonconformity to the Constitution

The unconstitutionality of the provision at issue in this case does not lie in the fixed-term employment of faculty members itself. Instead, the unconstitutionality of the provision at issue in this caselies in completely blockinga way for a faculty member whose employ-

ment is not renewed to seek any relief therefrom, by failing to provideany regulations as to the ground for a decision to not renew, relief procedure prior to a final decision to not renew, or relief procedure to challenge an unjust denial to renew. Here, however, a holding ofsimple unconstitutionality of the provision at issue in this case wouldbe tantamount to a decision holding that the fixed-term employment of faculty members itself is unconstitutional. Therefore, we hereby issue a decision of nonconformity,instead of a decision of unconsti-

tutionality.

As a decision of nonconformity of a specific legal provision to the Constitution creates an obligation to revise the law on the part of the

legislators to remove the unconstitutional status of such legalprovision by the earliest possible moment, the legislators should, withall due deliberate speed, eliminate the unconstitutionality of the pro-

vision at issue in this case, by revising the provision to include such procedures available both prior to and subsequent to a decision to not renew the employment of a faculty member at the conclusionof the initial fixed-term employment under this provision and a reliefprocedure to challenge such decision to not renew.

5. Conclusion

It is so determined and ordered as stated in the holding, as the provision at issue in this case does not conform, as reviewed above, to the Constitution. Therefore, the previous decision of the Court in 96Hun-Ba33 of July 16, 1998 and others wherein the Court held thatthe provision at issue in this case was not in violation of the Consti-

tution is hereby modified pursuant to the holding of this case by theagreement of seven(7) Justices excluding Justices Han Dae-hyun andHa Kyung-chull.

6. Dissenting Opinion of Justices Han Dae-hyun and

Ha Kyung-chull

A. Article 31(6) providing that "fundamental matters pertaining to the educational system including in-school and lifelong education,administration, finance, and the status of teachers shall be determinedby statute" is interpreted to be basedon the perceptionthat it is ap-

propriate to specifically form and change the educational system bythe legislature as the representative of the public through a democraticmethod reflecting the particular social conditions and the special natureof education, for the education systemincluding thestatus of educa-

tors by its nature should be formed and developed in harmony with the ideologies and morals of the national and social communities ofthe time. Therefore, the above constitutional provision mandates thatthe status of teachers be determined by statute, not only to protect therights and interests of teachers or to protect teachers against unjustinfringement thereupon by governmental powers, but also to effectivelyguarantee the citizens' basic right to education. Therefore, the subjectmatter of the statutes enactedbased on Article 31(6) of the Constitu-

tion may concern not only the rights and interests of teachers includingthe guarantee of the status and the economic and social positions of teachers, but also the obligation of teachers such as a prohibition ofconduct potentially impeding upon the citizens' right to education and, further yet, may also concern the limitation of the basic rights of teachers.

On the other hand, Article 31(4) of the Constitution provides that"independence, expertise and political neutrality of education, and the autonomy of the institutions of higher learning shall be guaranteed under the conditions as prescribed by statute," thereby guaranteeing the independence of educationand theautonomy of the collegiateed-

ucational institutions. This is for the sufficient functioning of the collegiate institutions of the pursuit of the truth and the cultivationof the personality, by way of research and education by those belongingto such institutions free of restraints by eliminating interferences withsuch institutions from outside such as by the governmental power andhaving the constituents themselves operate such institutions. Indepen-

dence of education or the autonomy of the collegiate institutions isindispensible as a sure method of guaranteeing the academic freedomprotected under Article 22(1) of the Constitution and is a constitutionalbasic right guaranteed to such institutions of higher education of col-

leges and universities. The autonomy of colleges and universities notonly means the autonomy in management and operation of the school facilities, but also means the autonomy in the content, methodandobject of the research and education, the composition of the curriculum, and the recruitment and admission of students. Specifically, such autonomy includes the autonomy concerning the matters relating to the appointment and removal of faculty members.

B.The tenure system with a guarantee of retirement as applicableto the college and university faculty members has the merit of securingindependence and continuity requiredfor academic research and ac-

tivities through the guarantee of status; at the same time, however,it has a problem of overinclusively protecting those who are inappro-

priate to assume the position of the college or university faculty by being academically unproductive and neglecting academic research and activities and other obligations as educators and also those who are solely interested in the areas outside the academic research and activities uniquely required for the position as college and university faculty. On the other hand, the fixed-term employment system has the merit of encouraging faculty members to incessantly perform academic research and activities by subjecting them to a renewal decision upon review at the completion of the initial employmentterm; instead, however, isvulnerable to the interference of a subjec-

tive bias of the decisionmaker possibly leading to renewal decisionsand denials thereof unsupported by objectivity and fairness, which mightharm independence and continuity of academic research and activitiesthrough insecurity of the status of faculty members. Therefore, the tenure system and the fixed-term employment system have their re-

spective merits and disadvantagesin terms of the nation's implemen-

tation of the obligation to promote science for the realization of aculture

state or the realization of and the methodology for the right toeducation retained by the citizens, which in turn renders it difficult tojudge which system is better or more desirable. A decision or choiceconcerning the above will thus be better to be left as a matter of legislative policy than to be resolved by the Constitutional Court.

C.When a private university adopts a fixed-term employment sys-

tem pursuant to the provision at issue in this case, it may furtherfreely choose a mechanism most suitable for itselfon its own judg-

ment among various employment systems, such as (i) a fixed-term employment with an automatic renewal at the successful completionof the original term, and (ii) a fixed-term employment where the em-

ployment relationship automatically closes at the end of the original term and a renewal of the employment is at the sole discretion ofthe decisionmaker. The legislative purpose of this provision is suf-

ficiently agreeable as the above mechanism is a system designed to maximally guarantee the independence of education at each privateuniversity and the autonomy of the private university upon considera-

tion of the particularities of private universities compared with nationalor public universities.

Therefore, although the prior and subsequent procedures arguedfor by the majority of the Court are understandably to further protectthe status of teachers at private universities, lack of such devicesalone may not render the provision at issue in this case unconformingto the Constitution for impairing the essence of the principle of thestatutory status of educators. Rather, it invites concern that mandatingsuch devices might harm the independence of the private collegiate education or the autonomy of the private collegiate institutions.

Justices Yun Young-chul(Presiding Justice), Han Dae-hyun, Ha Kyung-chull, Kim Young-il, Kwon Seong, Kim Hyo-jong, Kim Kyung-il, Song In-jun, and Choo Sun-hoe(Assigned Justice)