[Plaintiff, Appellee]
[Defendant, Appellant] School Juridical Person
[Judgment Below] Seoul High Court Decision 2014Na2006327 dated November 19, 2014
[Order]
The judgment below is reversed. The Plaintiff's appeal is dismissed. The Plaintiff shall bear the total costs of litigation incurred after the filing of the appeal.
[Reasoning]
The grounds of appeal (to the extent that the supplementary brief on grounds of appeal, submitted after the expiration of the period for submitting the grounds of appeal, supplements the grounds of appeal) are examined as follows.
1. The court below found the following facts: ① the Plaintiff was appointed as an assistant professor around 1983 and served as a full professor in the Department of Business Administration at ○○ University from around 1998 until retiring upon reaching the mandatory retirement age on February 29, 2012; ② on November 10, 2010, the Defendant issued a dismissal disposition against the Plaintiff on grounds including violation of the duty to maintain dignity and the duty to refrain from collective action, but following the Plaintiff's request to the Teachers' Appeals Review Committee (교원소청심사위원회) for revocation of the said dismissal disposition, a decision was rendered on February 21, 2011 changing the dismissal disposition to a three-month salary reduction; ③ in response, both the Plaintiff and the Defendant each filed lawsuits against the Teachers' Appeals Review Committee seeking revocation of the said decision, and on February 28, 2013, the lawsuit filed by the Plaintiff was finally determined in the Plaintiff's favor, while the lawsuit filed by the Defendant was finally determined against the Defendant; and ④ nevertheless, on May 1, 2013, the Defendant issued a disciplinary disposition of reprimand against the Plaintiff on the ground of the Plaintiff's violation of the duty to maintain dignity, retroactively effective as of February 29, 2012, the last day of the Plaintiff's tenure (hereinafter referred to as "the instant disposition").
Furthermore, the court below determined as follows. The Higher Education Act (고등교육법) provides a basis for honorary professors, stating that a school may appoint honorary professors to be in charge of education or research (Article 17). Pursuant thereto, the Enforcement Decree of the same Act and the Honorary Professor Rules (Ministry of Education Ordinance, 명예교수규칙) provide that a person eligible to be honored as an honorary professor must be a person who has served as a faculty member of assistant professor rank or higher at the relevant university for a period prescribed by the school regulations, was serving as president, dean, or professor at the time of retirement, and who, during such tenure, achieved outstanding accomplishments in education or scholarship that serve as a model for other faculty members (Article 7, Item 2 of the Enforcement Decree; Article 3 of the Honorary Professor Rules). The head of the relevant university may have honorary professors participate in research activities in their field of specialization or deliver special lectures (Article 5 of the Honorary Professor Rules), and may pay honorary professors research expenses for research in their field of specialization or special allowances for special lectures (Article 6 of the Honorary Professor Rules). In light of these provisions, the Defendant's Honorary Professor Regulations (명예교수규정) provide that a person who has served continuously for 25 years or more as a faculty member of full-time instructor rank or higher and retired upon reaching mandatory retirement age, and who has contributed to scholarship or the development of the school, may be honored as an honorary professor; provided, however, that a person may be excluded from candidacy for honorary professor status if it is found that the person was subject to disciplinary action during their tenure or caused a social or ethical controversy that significantly damaged the honor of the school or the faculty (Article 2). The Regulations also provide that honorary professors may be commissioned to teach courses and, if invited by the president, may attend general faculty meetings and present opinions (Article 6). In light of the foregoing, the court below determined that even though the Plaintiff retired upon expiration of the term of office at the mandatory retirement age, the instant disposition affects the Plaintiff's legal status regarding eligibility to be honored or commissioned as an honorary professor, and therefore the Plaintiff has a legal interest in seeking confirmation of the invalidity of the instant disposition in order to remove such risk or uncertainty. Accordingly, the court below rejected the Defendant's pre-merits defense that the Plaintiff, having already retired at the mandatory retirement age, lacks a legal interest in seeking confirmation of the invalidity of the instant disposition.
2. Upon examining the reasoning of the judgment below in light of the record, since the Plaintiff has already retired at the mandatory retirement age and the employment relationship with the Defendant has thus been extinguished, seeking confirmation of the invalidity of the instant disposition amounts to seeking confirmation of invalidity concerning a past legal relationship, and thus, as a general rule, there is no interest in confirmation.
However, even with respect to a past legal relationship, a lawsuit for confirmation concerning that legal relationship may be found to have an interest in immediate confirmation only where it can be recognized that the past legal relationship affects a current right or legal status, and that obtaining a declaratory judgment concerning that legal relationship constitutes an effective and appropriate means of removing risk or uncertainty regarding the current right or legal status (see Supreme Court en banc Decision 95Jaeda199 dated May 18, 2000, etc.).
3. However, even under the Defendant's Honorary Professor Rules and Honorary Professor Regulations, in order to be honored as an honorary professor, a candidate who meets the qualifications set forth in Article 3 of the Defendant's Honorary Professor Rules and Article 2 of the Honorary Professor Regulations as discussed above must undergo a review by the Faculty Personnel Committee (교원인사위원회) of the candidate's research achievements and contribution to the university, and must be recommended to the president upon approval of two-thirds or more of the incumbent members, followed by the president's act of honoring the recommended candidate as an honorary professor (Articles 3 and 5 of the Honorary Professor Regulations). Therefore, it is not mandatory that a faculty member who has served continuously for 25 years or more at the rank of full-time instructor or higher and retired at mandatory retirement age be honored as an honorary professor, nor is it mandatory that a person who has been subject to disciplinary action during their tenure be necessarily excluded from candidacy for honorary professor status (conversely, the absence of any disciplinary record during tenure does not guarantee that a person will be honored as an honorary professor). Even if the fact that the Plaintiff has a record of having received a disciplinary disposition such as the instant disposition may operate to the Plaintiff's disadvantage relative to others in being honored as an honorary professor, this constitutes a factual disadvantage rather than a legal disadvantage, and thus cannot be deemed to constitute an existing risk or uncertainty with respect to a right or legal status.
Furthermore, as to the Plaintiff's remaining argument that there is an interest in seeking confirmation of the invalidity of the instant disposition because the Plaintiff suffered the disadvantage of failing to receive certain welfare benefits due to the instant disposition, and because a record of having received a disciplinary disposition would operate as a disadvantageous impediment, compared to persons without such a record, in running for university president in future elections or being appointed to public office or teaching positions—as the court of first instance aptly pointed out, seeking confirmation of the invalidity of the instant disposition without claiming the unpaid welfare benefits lacks an interest in confirmation, and even if a record of having received a disciplinary disposition of reprimand operates as a factually disadvantageous ground, compared to persons without such a record, in being appointed to public office or as a teacher, this alone cannot be deemed to constitute an infringement of a legal interest, and therefore cannot be deemed to give rise to an interest in seeking confirmation of invalidity.
Nevertheless, the court below, proceeding on the premise that the Plaintiff's claim in this case has an interest in confirmation, went on to render a judgment on the merits. Accordingly, the judgment below erred by misapprehending the legal principles concerning the interest in confirmation in an action for confirmation, and such error affected the judgment. The Defendant's ground of appeal pointing this out is well-founded.
4. Conclusion
Accordingly, without examining the remaining grounds of appeal, the judgment below is reversed. As this case is sufficiently ripe for this Court to render its own judgment, the Court renders judgment directly as follows: as discussed above, the instant lawsuit is unlawful and should be dismissed without prejudice (각하), and since the judgment of the first instance, which reached the same conclusion, is justified, the Plaintiff's appeal is dismissed, and the total costs of litigation incurred after the filing of the appeal shall be borne by the losing party. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Presiding Justice Kwon Soon-il
Justice Min Il-young
Justice Park Bo-young (Presiding Justice for Report)
Justice Kim Shin