[Plaintiff, Appellant] Plaintiff (Attorney Han Kyung-kook, counsel for the plaintiff)
[Defendant, Appellee] Seonghan School Foundation (Attorney Park Seung-seo, counsel for the defendant)
[Lower Court Judgment] Seoul High Court Decision 90Na15145 rendered on November 28, 1990
[Order]
The part of the lower court judgment against the plaintiff regarding the confirmation of invalidity of the dismissal disposition is reversed, and this part of the case is remanded to the Seoul High Court.
The remainder of the appeal is dismissed, and the costs of appeal relating to this dismissed portion shall be borne by the plaintiff.
[Reasoning] The grounds of appeal submitted by the plaintiff's counsel are examined.
1. According to the reasoning of the lower court judgment, with respect to the plaintiff's claim in this action seeking confirmation that the defendant's dismissal disposition of December 31, 1988 was invalid, the lower court found, based on the evidence cited, that the plaintiff was appointed on April 1, 1986 by the president of Kukje College, which is under the defendant Foundation, as an assistant professor of Kukje College established and operated by the defendant Foundation, for a fixed appointment term of three years, and that it was evident from the calendar that this appointment term had already expired. The lower court then held as follows: Under Article 11, Paragraph 3, Items 1 and 2 of the Educational Officials Act (교육공무원법), Article 32, Paragraphs 2 and 3 of the defendant Foundation's Articles of Incorporation, and Articles 3 and 16 of its Personnel Regulations, assistant professors and full-time instructors are to be appointed for a fixed term of two to three years, and when the president reappoints a faculty member, this must go through deliberation by the Faculty Personnel Committee; as for faculty members who are not to be reappointed, the relevant faculty member must be notified of the reasons therefor one month prior to the end of the semester in which the term expires. These provisions merely set forth reappointment procedures and do not, anywhere in these provisions, impose upon the appointing authority any obligation to reappoint a person whose appointment term has expired, nor do they establish any basis regarding the requirements for such reappointment. Accordingly, upon expiration of the appointment term as set forth above, the status relationship as a university faculty member naturally terminates. Therefore, even if the defendant's dismissal disposition against the plaintiff were invalid, the plaintiff could not recover the status of a faculty member of Kukje University under the defendant Foundation, and thus the action seeking confirmation of invalidity of the dismissal disposition fails to satisfy the requirement of interest in confirmation or the requirement for protection of rights. The lower court further held that even if there were a need to seek confirmation of invalidity as a preliminary issue in the plaintiff's wage claim action against the defendant, such confirmation could not serve as an effective and appropriate means, and thus there is no interest in separately contesting the invalidity of the dismissal disposition through a separate action for confirmation. The lower court accordingly determined that the action seeking confirmation of invalidity of the dismissal disposition was unlawful.
2. Upon examination of the record, the lower court's determination that the status relationship as a faculty member of Kukje College under the defendant Foundation naturally terminated upon expiration of the plaintiff's appointment term as stated above is justified, and there is no illegality as argued in the grounds of appeal.
However, even with respect to a past legal relationship, where such relationship continues to affect a present right or legal status, and where obtaining a declaratory judgment concerning that legal relationship is recognized as an effective and appropriate means of removing danger or uncertainty concerning a present right or legal status, an action for confirmation of that legal relationship should be deemed to have the benefit of immediate confirmation. This interpretation is also consistent with the dispute-resolution and dispute-prevention functions of declaratory actions. As the lower court held, since the plaintiff's appointment term as a faculty member of Kukje College under the defendant Foundation has already expired, and the plaintiff can no longer return to the status of a faculty member of said school, the claim for confirmation of invalidity of the dismissal disposition in this case, insofar as it concerns recovery of the status of faculty member of said school, amounts to nothing more than a claim for confirmation of a past legal relationship that has no effect on a present legal relationship. Nevertheless, insofar as the continued existence of the dismissal disposition poses a danger or uncertainty to the plaintiff with respect to rights or legal status other than the status of faculty member of said school, if obtaining a judgment confirming the invalidity of the dismissal disposition is recognized as an effective and appropriate means of removing such danger or uncertainty, then the action seeking confirmation of invalidity of the dismissal disposition should be deemed to have the benefit of immediate confirmation.
Now, Article 33, Paragraph 1, Items 7 and 8 of the State Public Officials Act (국가공무원법) list, as grounds for disqualification from appointment as a public official, cases where five years have not elapsed since a person received a disciplinary dismissal (파면) or three years have not elapsed since a person received a disciplinary discharge (해임). Article 77, Item 1 of the Education Act (교육법) lists, as a ground for disqualification from appointment as a faculty member, a case where a person is ineligible to hold public office under other statutes. Furthermore, Article 54, Paragraph 3 of the Private School Act (사립학교법) provides that with respect to a person who has grounds for disqualification from appointment as a faculty member as described above, the appointing/dismissing authority may be required to discharge such person. In light of each of these provisions, the plaintiff, as a result of the dismissal disposition in this case, cannot avoid being treated as disqualified from appointment to public office or as a faculty member for three years from the date of the dismissal disposition. Moreover, even after the period of disqualification has elapsed, there is no doubt that a prior record of having received a disciplinary dismissal such as the one in this case will function as a disadvantageous impediment to appointment to public office or as a faculty member, compared to a person without such a record. Therefore, it is appropriate to view that the plaintiff has an interest in seeking confirmation of invalidity of the dismissal disposition in this case in order to remove the danger or uncertainty concerning his legal status with respect to eligibility for appointment to public office or as a faculty member.
The effect that an ordinary disciplinary dismissal (파면) or disciplinary discharge (해임) has upon the person concerned is not limited merely to the loss of one's current job and wage income, but extends to serious consequences including damage to social reputation and restriction of opportunities for reemployment. Therefore, where the plaintiff asserts the invalidity of such a disposition, the plaintiff's claim should not be readily rejected merely on the ground that the term of the status held at the time the disposition was received has expired and recovery of that status is no longer possible. Rather, the court should examine what legal disadvantages the plaintiff would suffer as a result of the continued existence of the dismissal disposition alleged to be invalid, beyond the pre-existing status relationship, and should appropriately exercise its authority to seek clarification (석명권) from the parties on this point in order to determine whether there is an interest in confirmation.
The lower court, without doing so, rendered the above determination, thereby committing an error of law regarding the legal principles on the interest in confirmation which affected the judgment, and the judgment cannot be sustained.
3. Therefore, the part of the lower court judgment against the plaintiff regarding the confirmation of invalidity of the dismissal disposition is reversed and remanded. As no grounds of appeal have been asserted with respect to the part of the judgment against the plaintiff regarding the claim for payment of money, that portion of the appeal is dismissed, and the costs of appeal relating thereto shall be borne by the losing party. It is so decided by the unanimous opinion of the Justices participating, as set forth in the Order.
Justice Bae Man-woon (Presiding Justice), Justice Yi Hoi-chang, Justice Lee Jae-sung, Justice Kim Seok-su