[Plaintiff, Appellant] Plaintiff (Attorney Lee Young-gyu, counsel for the plaintiff)
[Defendant, Appellee] Dongwon Yukyeonghoe Educational Foundation (Attorney Lee Seok-jo, counsel for the defendant)
[Judgment Below] Seoul High Court Decision 2001Na75532 rendered on August 21, 2002
[Order]
The part of the judgment below concerning the conjunctive claim is reversed, and this part of the case is remanded to the Seoul High Court. The remainder of the Plaintiff's appeal is dismissed.
[Reasoning]
1. The court below, upon comprehensive consideration of the evidence it adopted, found the following facts.
A. The Plaintiff was appointed as an administrative staff member on June 1, 1968 at ○○○○○ University (hereinafter "○ University"), which is established and operated by the Defendant, and served successively as Head of the Audiovisual Education Office, Manager of the General Affairs Division of the General Affairs Department, and Manager of the Academic Affairs Division of the Academic Affairs Department. He served as Deputy Director of the Academic Affairs Department from March 1, 1994 to February 9, 1998, as Head of the Audiovisual Education Section from February 10, 1998 to July 14, 1998, and was placed on standby assignment in the General Affairs Department from July 15, 1998, until he was dismissed by disciplinary action on September 21, 1998.
B. Circumstances of the disciplinary action
(1) Under ○ University's organizational structure regarding the selection of transfer students, supervisory and management responsibility lies in order with the Director of Academic Affairs, the Deputy Director of Academic Affairs, and the Academic Affairs Chief or Admissions Chief, with the Academic Affairs Chief handling the practical work. While serving as Deputy Director of the Academic Affairs Department, in early February 1996 the Plaintiff received instructions from Non-party 1, the Director of Academic Affairs, to arrange for the children of faculty and staff members to pass the 1996 academic year transfer examination, whereupon the Plaintiff instructed Non-party 2, the Admissions Chief, to have these students pass by extracting and manipulating their answer sheets after the examination. On February 6, 1996, the date of the transfer examination, the Plaintiff handed over to Non-party 2 a memo containing the examination numbers and names of examinees Non-party 3 and Non-party 4, which he had received from Non-party 1, along with model answer sheets. Non-party 2 extracted the answer sheets of Non-party 3 and Non-party 4 from among the examination answer sheets stored in the Academic Affairs Department warehouse of ○ University, manipulated the scores by adding correct answers to the blank sections of the answer sheets, and then reinserted them, thereby fraudulently causing Non-party 3 and Non-party 4 to pass the transfer examination.
(2) In mid-January 1997, the Plaintiff again received instructions from Non-party 1 to arrange, as in the previous year, for the children of persons who had made significant contributions to the school's development to pass the 1997 academic year transfer examination, and while instructing Non-party 2 to have these examinees pass by switching the actual answer sheets with model answer sheets, the Plaintiff obtained advance seals in the examiner confirmation section on blank OMR answer sheets from seven staff members including Non-party 5, who had been assigned as exam proctors, and received an answer key from Non-party 6, a professor in the English Department of ○ University who chaired the transfer examination question-setting committee. On January 25, 1997, the date of the transfer examination, the Plaintiff gave Non-party 2 a memo containing the examination numbers and names of seven examinees including Non-party 7, which he had received from Non-party 1, together with the blank OMR answer sheets and answer key prepared as described above. Non-party 2 marked correct and incorrect answers appropriately on the blank answer sheets to complete them, and then switched them with the answer sheets already completed by the relevant examinees, thereby manipulating the scores and fraudulently causing the said seven persons including Non-party 7 to pass the transfer examination.
(3) In addition, upon receiving instructions from Non-party 1 to also have Non-party 8 and Non-party 9 pass the 1997 academic year transfer examination in addition to the aforementioned seven examinees, the Plaintiff, through Non-party 2, fraudulently caused Non-party 9 and Non-party 8 to pass the transfer examination using the same method as described in paragraph (2) above. The Plaintiff also received KRW 11,000,000 from Non-party 10, the Director of Finance, out of the money that Non-party 1 had received from the parents as consideration for the fraudulent transfer admissions, of which the Plaintiff used KRW 3,000,000 himself, and gave KRW 2,000,000 each to Non-party 2, the Academic Affairs Chief, Non-party 11, the Publications Manager, and Non-party 7, the Computing Manager, while using the remainder for staff dinners and similar expenses.
(4) When the Ministry of Education discovered the fraudulent transfer admission acts described in paragraphs (1) and (2) above during an audit of ○ University around May 1998, it demanded that the Defendant discipline those involved in the fraudulent transfer admission acts, requiring dismissal of Non-party 1, the Plaintiff, and Non-party 6, and suspension of Non-party 2, and also reported Non-party 1, the Plaintiff, Non-party 6, and Non-party 2 to the prosecution.
(5) The Plaintiff, Non-party 6, and Non-party 2 were indicted for obstruction of business in connection with the fraudulent transfer admission acts described in paragraphs (1) and (2) above at the Seoul District Court, Eastern Branch. On July 14, 1998, in Case No. 98Godan2942, the Plaintiff was sentenced to one year imprisonment with two years' suspension of execution, and Non-party 6 and Non-party 2 were each sentenced to a fine of KRW 10,000,000. Upon appeal, on May 13, 1999, in Seoul District Court Case No. 98No7024, Non-party 6 and Non-party 2 were each sentenced to a fine of KRW 8,000,000, and on August 12 of the same year, the Plaintiff was sentenced to a fine of KRW 15,000,000, both of which became final around that time. In addition, the Plaintiff, Non-party 6, Non-party 2, and Non-party 12 were summarily indicted for obstruction of business, etc. in connection with the fraudulent transfer admission acts described in paragraph (3) above, and in Seoul District Court Case No. 99Goyak19726, each was sentenced to a fine of KRW 5,000,000.
(6) On September 9, 1998, the Defendant referred the Plaintiff to the Staff Disciplinary Committee in accordance with the procedures set forth in Article 7 of the Staff Disciplinary Regulations, on the ground that the Plaintiff's acts related to the fraudulent transfer admissions violated Article 22 (Staff Conduct), Article 23 (Duties), Article 26 (Automatic Retirement), Article 27 (Ex Officio Dismissal), paragraph 3, and Article 28 (Suspension from Duty and Dismissal) of the Staff Personnel Regulations, Article 3 (Duty to Maintain Dignity) and Article 4 (Duty of Good Faith) of the Service Regulations, and Article 5, paragraph 1 (Compliance with Regulations) of the Rules of Employment, which constitute grounds for disciplinary action under Article 5, subparagraphs 1, 3, and 4 of the Staff Disciplinary Regulations. The Staff Disciplinary Committee, convened on September 18, 1998, resolved to dismiss the Plaintiff. The Plaintiff submitted a letter of resignation on September 30, 1998 while also requesting a review, but the Staff Disciplinary Review Committee, convened on October 20, 1998, rejected the Plaintiff's request for review.
(7) Meanwhile, among the staff members referred to disciplinary action in connection with the fraudulent transfer admission acts, the Defendant dismissed Non-party 1, dismissed Non-party 2 ex officio (the Staff Disciplinary Committee had resolved dismissal, but the Staff Disciplinary Review Committee changed it to ex officio dismissal), imposed disciplinary reprimand of two months' probation on each of the seven exam proctors including Non-party 16, Non-party 5, Non-party 13, Non-party 14, Non-party 15, Non-party 7, and Non-party 17, and dismissed Non-party 6, a faculty member, following faculty disciplinary procedures.
C. The Defendant's Retirement Allowance Payment Regulations, etc.
(1) The Defendant's Faculty and Staff Retirement Allowance Payment Regulations (hereinafter the "Retirement Allowance Regulations at issue") provide that retirement allowances calculated according to the standards set forth in Article 3 shall be paid to full-time lecturers and above, and administrative staff members, who were appointed before September 30, 1984, but the proviso to Article 2 provides that no retirement allowance shall be paid to those who retire due to disciplinary action.
(2) The Defendant did not pay the Plaintiff a retirement allowance under the Retirement Allowance Regulations at issue, pursuant to the proviso to Article 2 of said Regulations.
(3) Meanwhile, on November 25, 1998, the Plaintiff received KRW 72,661,670 (lump-sum retirement benefit of KRW 53,662,240 + retirement allowance of KRW 18,999,430) as retirement benefits under the Private School Teachers and Staff Pension Act (사립학교교직원연금법) from the Private School Teachers and Staff Pension Corporation.
2. We examine the grounds for appeal.
A. As to Ground for Appeal No. 1
With respect to the Plaintiff's argument that Article 5, subparagraph 3 of the Defendant's Staff Disciplinary Regulations is void because it does not specify concrete grounds for disciplinary action, the court below held that the phrase "when one commits intentional misconduct or gross negligence in the course of duty" in Article 5, subparagraph 3 of the Defendant's Staff Disciplinary Regulations should reasonably be interpreted, according to its literal meaning, as meaning "a case where there has been misconduct due to intentional wrongdoing or gross negligence in the course of duty," and that since the provision requires "intentional wrongdoing in the course of duty" or "gross negligence" as elements, the provision cannot be deemed void merely because it does not exhaustively enumerate all acts that could constitute grounds for disciplinary action. The court below further held that the Plaintiff's fraudulent transfer admission acts constitute misconduct through intentional wrongdoing in the course of duty and thus fall under the grounds for disciplinary action set forth in Article 5, subparagraph 3 of the Staff Disciplinary Regulations, and thereby rejected the Plaintiff's above argument.
Upon examining the record in light of the evidence adopted by the court below, the above determination of the court below is justified, and there is no error of law therein based on an unfounded expansive interpretation of the wording of Article 5, subparagraph 3 of the Defendant's Staff Disciplinary Regulations or a misunderstanding of the legal principles concerning grounds for disciplinary action. This ground for appeal cannot be accepted.
B. As to Ground for Appeal No. 2
With respect to the Plaintiff's argument that, since Article 66-2, paragraph 1 of the Private School Act (사립학교법) provides, regarding the statute of limitations for grounds of disciplinary action against private school teachers, that "a request for a disciplinary resolution may not be made after two years have elapsed from the date on which the grounds for disciplinary action arose," it was unlawful for the Defendant to refer the Plaintiff to the Staff Disciplinary Committee and discipline him after two years had elapsed from the time of the Plaintiff's fraudulent transfer admission acts, the court below held that Article 66-2, paragraph 1 of the Private School Act is a provision applicable to disciplinary action against private school teachers under the Private School Act, and cannot be applied to the disciplinary action against the Plaintiff, who is an administrative staff member and not a private school teacher, thereby rejecting the Plaintiff's above argument.
As the court below determined, it is correct that Article 66-2, paragraph 1 of the Private School Act, which prescribes the limitation period for grounds of disciplinary action, applies only to private school teachers. However, according to the record, Article 66-2 of the Defendant's Articles of Incorporation contains a provision with the same content as Article 66-2, paragraph 1 of the Private School Act regarding disciplinary action against teachers, while Article 87 provides that "the provisions applicable to private school teachers shall apply mutatis mutandis to the job security of general staff members," and Article 88, paragraph 1 provides that "the provisions applicable to private school teachers shall apply mutatis mutandis to disciplinary action against general staff members, provided that a separate General Staff Disciplinary Committee shall be established within the corporation." If these facts are as stated, it would be reasonable to view that the Defendant, pursuant to the provisions of its Articles of Incorporation, applies mutatis mutandis the provision on the limitation period for grounds of disciplinary action under Article 66-2, paragraph 1 of the Private School Act to disciplinary action against its administrative staff members as well. Since the Plaintiff's above argument may be deemed to include the assertion that the provision of Article 66-2, paragraph 1 of the Private School Act applies mutatis mutandis to administrative staff members pursuant to the provisions of the Defendant's Articles of Incorporation, the court below should have examined and determined this point. However, the court below merely rejected the Plaintiff's argument on the ground that Article 66-2, paragraph 1 of the Private School Act applies only to private school teachers, and thereby the judgment below is unlawful due to insufficient deliberation, misapprehension of facts due to violation of the rules of evidence, or misunderstanding of the legal principles concerning the mutatis mutandis application of Article 66-2, paragraph 1 of the Private School Act to administrative staff members pursuant to the Defendant's Articles of Incorporation.
If, as such, the provision of Article 66-2, paragraph 1 of the Private School Act is deemed to apply mutatis mutandis to the disciplinary procedure against the Plaintiff, then among the Plaintiff's acts of misconduct, the fraudulent transfer admission act committed in February 1996 could not be used as a ground for disciplinary action since two years had already elapsed by the time the disciplinary resolution was requested, and only the fraudulent transfer admission act committed in January 1997 could be used as a ground for disciplinary action.
Meanwhile, when a person subject to disciplinary action, being a faculty or staff member, has committed an act constituting grounds for disciplinary action under the Private School Act, the determination of what disciplinary measure to impose is entrusted to the discretion of the disciplinary authority, and only where a disciplinary measure taken by the disciplinary authority in the exercise of its discretion is found to be so clearly unreasonable by common social standards as to constitute an abuse of the discretion entrusted to the disciplinary authority can such measure be deemed unlawful. In order to find that a disciplinary measure against a faculty or staff member is clearly unreasonable by common social standards, it must be the case that, upon comprehensive consideration of various factors according to the specific circumstances—including the content and nature of the misconduct that gave rise to the disciplinary action, the purpose sought to be achieved by the discipline, and the standards for determining the degree of discipline—the content of the disciplinary measure can be objectively found to be clearly unjust. Even where the exercise of disciplinary authority is entrusted to the discretion of the appointing authority, such a disciplinary measure would exceed the limits of discretion and thus be unlawful where it violates the principle of public interest that disciplinary authority should be exercised for public purposes, or where it violates the principle of proportionality by selecting an excessively severe disciplinary measure disproportionate to the degree of the misconduct generally taken as grounds for disciplinary action, or where it violates the principle of equality by selecting, without reasonable cause, a disciplinary measure inconsistent with, and unfair in comparison to, the standards generally applied to misconduct of the same degree (see, e.g., Supreme Court Decision 2002Du9179 rendered on January 24, 2003). In making such a determination, in addition to the person's ordinary conduct, work performance, and any prior disciplinary record, misconduct not constituting grounds for disciplinary action that was committed before or after the misconduct at issue in the disciplinary action may also serve as reference material in determining the degree of discipline (see, e.g., Supreme Court Decision 98Da2365 rendered on May 22, 1998), and where, among several grounds for disciplinary action, some are not recognized but the remaining recognized grounds are sufficient to justify the disciplinary measure in question, such disciplinary measure may be upheld as lawful (see, e.g., Supreme Court Decision 2002Du6620 rendered on September 24, 2002).
In this case, the fraudulent transfer admission act committed in January 1997 alone caused nine examinees to fraudulently pass, thereby completely undermining the fundamental basis of the admissions examination process and inflicting damage upon bona fide examinees that is difficult to compensate, as well as causing parents and students to lose trust in private school faculty and staff and in education generally, thereby damaging the authority and reputation of the Defendant and educational institutions as a whole. In addition, even though it does not constitute grounds for disciplinary action, considering the Plaintiff's prior record of having previously committed the same type of fraudulent transfer admission act causing two examinees to fraudulently gain admission, and even taking into account certain mitigating circumstances regarding the Plaintiff's length of service and the circumstances under which he became involved in the fraudulent transfer admission acts, and even if, as the Plaintiff argues, there are some indications of unfairness in the disciplinary procedure due to its being intertwined with internal disputes at ○ University, it cannot be said that the disciplinary dismissal against the Plaintiff was so excessively harsh as to be clearly unreasonable by common social standards, thereby exceeding the scope of discretion and constituting an unlawful measure.
Therefore, although the court below erred in premising that the Defendant's disciplinary measure, which took into account even the fraudulent transfer admission act committed in February 1996 for which the limitation period had expired, was legitimate, and in determining on that basis that the disciplinary measure did not constitute an abuse of disciplinary authority or a violation of equity, even if the fraudulent transfer admission act committed in February 1996 is excluded from the grounds for disciplinary action and only the fraudulent transfer admission act committed in January 1997 is taken as the ground for disciplinary action, it cannot be said that the Defendant's disciplinary dismissal of the Plaintiff exceeded or abused the discretion of disciplinary authority. Accordingly, the above errors of the court below in insufficient deliberation, violation of the rules of evidence, or misunderstanding of legal principles did not, as a result, affect the outcome of the judgment. This ground for appeal cannot be accepted either.
C. As to Ground for Appeal No. 3
With respect to the Plaintiff's conjunctive argument that, since the Plaintiff, as an administrative staff member of a private school, is a worker subject to the Labor Standards Act (근로기준법), the proviso to Article 2 of the Retirement Allowance Regulations at issue is void as being in violation of Article 34 of the Labor Standards Act, which is a mandatory provision, and that therefore the Defendant is obligated to pay the Plaintiff a retirement allowance calculated in accordance with the Retirement Allowance Regulations at issue, the court below held that the Private School Teachers and Staff Pension Act applies to the retirement benefits of private school faculty and staff members such as the Plaintiff, and that within that scope the application of the Labor Standards Act is excluded, such that it is reasonable to view Article 34 of the Labor Standards Act as not applicable to private school faculty and staff members. The court below further held that, unlike the retirement benefits under the Private School Teachers and Staff Pension Act, the Retirement Allowance Regulations at issue are regulations concerning retirement allowances separately paid by some private universities, according to standards set by each institution depending on its financial circumstances, as a matter of welfare benefits for faculty and staff members, and that the application of the Labor Standards Act or the Private School Teachers and Staff Pension Act, both of which have a public character, cannot be compelled with respect to such Retirement Allowance Regulations. On these grounds, the court below rejected the Plaintiff's above argument.
However, the above determination of the court below cannot be accepted in part, for the following reasons.
The provision on the retirement allowance system under Article 34 of the Labor Standards Act is a mandatory provision, and regardless of whether the cause of retirement is voluntary resignation by the employee or dismissal by the employer, a retirement allowance based on the minimum standard set forth in the Labor Standards Act must necessarily be paid (see Supreme Court Decision 71Da1033 rendered on April 11, 1972). Meanwhile, with respect to the appointment, remuneration, service, and job security of administrative staff members of private schools, Article 70-2, paragraph 1 of the Private School Act merely provides that these matters shall be determined by the articles of incorporation of the school foundation, without specifying the content thereof, and since the employment relationship is essentially a private-law employment contract relationship, it is in principle subject to the Labor Standards Act; provided, however, that among matters concerning working conditions such as remuneration and service of administrative staff members of private schools, the application of the Labor Standards Act is excluded only with respect to matters concerning retirement benefits, etc. as prescribed by the Private School Teachers Pension Act (its name was changed to the "Private School Teachers and Staff Pension Act" upon amendment by Act No. 6124 on January 12, 2000; hereinafter the "Private School Teachers Pension Act") (see Supreme Court Decision 96Da38995 rendered on July 22, 1997).
However, administrative staff members of private schools became subject to the Private School Teachers Pension Act only after the amendment of the Private School Teachers Pension Act by Act No. 3058 on December 31, 1977, and pursuant to paragraphs 1 and 2 of the Addenda to the amended Act, an administrative staff member of a private school who was in active service at the time of enforcement of the amended Act is deemed to have been appointed on January 1, 1978, the date of enforcement of the amended Act. Therefore, even for an administrative staff member of a private school who was in active service at the time of enforcement of the amended Act, the Private School Teachers Pension Act does not apply to matters concerning retirement benefits, etc. for the period of service before January 1, 1978, and it must be interpreted that the Labor Standards Act applies to matters concerning retirement benefits for the period of service of an administrative staff member of a private school before January 1, 1978.
Therefore, with respect to the provision limiting retirement allowances under the proviso to Article 2, subparagraph 2 of the Retirement Allowance Regulations at issue, which the Defendant operates separately from the Private School Teachers Pension Act and which provides that no retirement allowance shall be paid to a person who retires due to disciplinary action, insofar as the portion of the retirement allowance concerning the period on and after January 1, 1978, when the Private School Teachers Pension Act began to apply to administrative staff members of private schools, is concerned, the application of Article 34 of the Labor Standards Act is excluded and only the provisions of the Private School Teachers Pension Act concerning retirement benefits apply, so that this cannot be deemed to violate Article 34 of the Labor Standards Act; however, insofar as the portion of the retirement allowance concerning the period before January 1, 1978 is concerned, Article 34 of the Labor Standards Act applies, and therefore the portion of the provision that also denies payment of retirement allowance for the period before January 1, 1978 must be deemed void as violating Article 34 of the Labor Standards Act. Accordingly, notwithstanding the above provision limiting retirement allowances, the Defendant is obligated to pay the Plaintiff, for the period of service from June 1, 1968, when the Plaintiff was appointed as an administrative staff member of ○ University, to December 31, 1977, the minimum retirement allowance prescribed under Article 34 of the Labor Standards Act, calculated based on the average wage at the time of retirement (or, if the average wage is lower than the ordinary wage, the ordinary wage).
Despite these circumstances, the court below rejected all of the Plaintiff's conjunctive arguments on the ground that the Private School Teachers Pension Act applies to the retirement benefits of administrative staff members of private schools such as the Plaintiff, and that the application of the Labor Standards Act is excluded within that scope. The judgment below is thus unlawful due to insufficient deliberation or misunderstanding of the legal principles concerning Article 34 of the Labor Standards Act and the timing at which administrative staff members of private schools became subject to the Private School Teachers Pension Act. The Plaintiff's ground of appeal is well-founded to this extent.
Meanwhile, pursuant to Article 2 of the Addenda to the Private School Teachers Pension Act (as amended by Act No. 3684 on December 30, 1983), where a person, among faculty and staff members of a private school, who is an administrative staff member and who has a period of service as a faculty or staff member between August 15, 1948 and December 31, 1977, retroactively pays, as prescribed by Presidential Decree, the individual contribution and the corporation's contribution for each corresponding month, the retroactively paid period may be included in the period of service in the aggregate calculation. Therefore, if the Plaintiff has retroactively paid the individual contribution and the corporation's contribution for the period of service before January 1, 1978 pursuant to the above Addenda provision, the retroactively paid period would be included in the aggregate period of service, and to that extent there is room for the application of the Labor Standards Act to be excluded. We therefore point out that the court below needs to examine this point as well.
3. Accordingly, the part of the judgment below concerning the conjunctive claim is reversed, and this part of the case is remanded to the court below for further deliberation and determination, and the remainder of the Plaintiff's appeal is dismissed. It is so decided by the unanimous opinion of the Justices participating in this decision, as set forth in the Order.
Justice Kim Yong-dam (Presiding Justice), Yoo Ji-dam, Bae Ki-won (Justice in charge), Lee Kang-guk