[Plaintiff, Appellant]
[Defendant, Appellee] Educational Foundation Gukpa Hagwon (학교법인 국파학원)
[Judgment Below]
Daegu High Court Decision 92Na2159 rendered on September 17, 1992
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
1.
Article 65, Paragraph 1 of the Private School Act (사립학교법) provides that "the Teacher Disciplinary Committee shall investigate the facts in hearing a disciplinary case, and shall hear the statement of the person concerned before making a disciplinary resolution: Provided, That an exception shall apply where the person fails to comply despite being summoned in writing two or more times." The purport of this provision is interpreted as guaranteeing the teacher subject to discipline an opportunity to appear before the Disciplinary Committee and make statements in his or her own favor in order to explain the alleged disciplinary grounds, while providing that if the teacher subject to discipline fails to comply despite being summoned in writing two or more times, such teacher shall be deemed to have voluntarily waived the right to make such statement, and the disciplinary resolution may then be made without a hearing of that statement.
Accordingly, in order to guarantee the above right of statement to the teacher subject to discipline, it is sufficient that the teacher be given, by means of written summons, two or more opportunities to appear before the Disciplinary Committee; it is not necessarily required that the notice of appearance be served two or more times in the course of the summoning procedure. Even where, in anticipation of the teacher's possible failure to attend the first Disciplinary Committee meeting, the dates, times, and places of both the first and second Disciplinary Committee meetings are specifically designated in advance and the respective notices of appearance are served simultaneously, such method of notice may also be deemed permissible, unless the schedules of the two committee meetings are set so closely together in time, without any interval, as to be unreasonably pressing.
The court below, in accordance with this purport, held that even though the Defendant Foundation, on July 21, 1989, served upon the Plaintiff a notice of appearance for the first Disciplinary Committee meeting to be held on the 28th of that month, and simultaneously served, in anticipation of the Plaintiff's possible failure to attend that meeting, a notice of appearance for the second Disciplinary Committee meeting to be held on August 4 of that year, this circumstance alone could not be regarded as rendering the notice of appearance before the Disciplinary Committee in this case unlawful so as to have deprived the Plaintiff of the right to make a statement prior to the disciplinary resolution. This determination by the court below is acceptable, and there is no error in the misapplication of law as alleged in the grounds of appeal. This ground of appeal is without merit.
Furthermore, in this case, where it is recognized that both the first and second notices of appearance before the Disciplinary Committee served by the Defendant Foundation upon the Plaintiff were lawfully served, the argument that the court below erred in finding that the Defendant subsequently again served the notice of appearance for the second Disciplinary Committee meeting in advance upon the Plaintiff, and that the Plaintiff received it, need not be further examined and is without merit.
2. Furthermore, the court below found that, even before the case was referred to the Disciplinary Committee in this case, the Plaintiff had, on several occasions, been informed in advance through interviews with the school principal and others that he would be disciplined unless he withdrew from the Korean Teachers and Education Workers' Union (전국교직원노동조합), and thus was well aware of the content of the disciplinary charges against him; and that neither the Private School Act nor the Articles of Incorporation of the Defendant Foundation, as they stood at the time the Plaintiff was disciplined, contained any provision requiring that a copy of the written request for disciplinary resolution be sent in advance to the person subject to discipline. In light of these circumstances, the court below determined that even though the Defendant did not attach and send a copy of the written request for disciplinary resolution when giving the Plaintiff notice of appearance before the Disciplinary Committee in this case, this fact alone could not be regarded as constituting a procedural defect rendering the disciplinary action against the Plaintiff void. Upon examining the record and the relevant statutes, this determination by the court below is also correct, and there is no error therein.
The Plaintiff's argument, premised on the fact that Article 6, Paragraph 3 of the Decree on Disciplinary Action against Public Educational Officials (교육공무원징계령), which governs the disciplinary bodies and procedures applicable to public educational officials, provides that "the person authorized to request a disciplinary resolution shall, simultaneously with the request for disciplinary resolution, send a copy of the written request for disciplinary resolution against the public educational official to the person suspected of the disciplinary offense," and that this provision applies mutatis mutandis to the disciplinary action against teachers of private schools, contends that the disciplinary procedure against the Plaintiff in this case was unlawful in that it lacked the procedure for prior notice of the grounds for discipline through service of a copy of the written request for disciplinary resolution. However, with respect to disciplinary action against teachers of private schools such as in this case, only the provisions on disciplinary procedure set forth in the Private School Act apply, and the provisions on disciplinary procedure under the aforementioned Decree on Disciplinary Action against Public Educational Officials are not to be applied mutatis mutandis.
Accordingly, the argument premised on the opposite view cannot be accepted. The precedents cited in the argument all concern cases governed by the former Public Educational Officials Act (교육공무원법) prior to its amendment, and thus are not appropriate to be invoked in this case.
3. Furthermore, upon examining the reasoning of the judgment below in light of the record, the determination that the Teacher Disciplinary Committee of the Defendant Foundation was not obligated to disclose in advance the list of disciplinary committee members even upon the request of the person subject to discipline in making a disciplinary resolution against a teacher, and that therefore there was no unlawfulness in the disciplinary procedure merely because the Defendant did not disclose the list of disciplinary committee members to the Plaintiff in advance, is acceptable; and likewise, the determination that the Plaintiff personally appeared before the Reexamination Committee held on September 1, 1989, pursuant to the Plaintiff's request for reexamination, and made sufficient statements in his own defense, is also correct in all respects. No unlawfulness such as misapprehension of facts due to insufficient deliberation or misapplication of the law concerning teacher disciplinary procedures, as alleged in the grounds of appeal, can be found. This ground of appeal is also without merit.
4. Accordingly, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Park Woo-dong (Presiding Justice), Justice Kim Sang-won, Justice Yoon Young-chul (Justice in Charge), Justice Park Man-ho