[Plaintiff, Appellant and Appellee]
[Defendant, Appellee and Appellant] Yeongnam Educational Foundation (학교법인 영남학원), Litigation Representative Attorney Seo Yoon-hong
[Judgment Below]
Daegu High Court Decision 91Na4400 rendered on July 30, 1992
[Order]
All appeals are dismissed.
The costs of appeal shall be borne by each appellant.
[Reasoning]
1. Plaintiff 1's Grounds of Appeal
As to the grounds of appeal by Plaintiff 1's litigation representative:
The court below, based on the evidence presented, found that Plaintiff 1 was appointed on September 1, 1981, with the term of appointment set to expire on August 31, 1991, and then determined as follows:
Since neither the Defendant Foundation's articles of incorporation nor its personnel regulations for university faculty contain any provision imposing an obligation to reappoint faculty members whose term of appointment has expired, even though the Defendant Foundation had, in the absence of special circumstances, customarily reappointed faculty members upon expiration of their terms, it would be difficult to expect that the Defendant Foundation would have reappointed the above Plaintiff given that it had already placed him on administrative leave and subsequently dismissed him through disciplinary action on the grounds of insufficient job performance ability and poor work performance. Therefore, even if Plaintiff ○○○ was dismissed prior to the expiration of his term of appointment and such dismissal was determined to be void, the said Plaintiff nonetheless naturally lost his status as a professor upon the expiration of his term of appointment.
According to the record, the court below's factual finding that it would have been difficult for the above Plaintiff to be reappointed, and its determination that, notwithstanding the invalidity of the dismissal disposition made during the term of appointment, the above Plaintiff lost his status as a professor upon the expiration of his term of appointment, are both reasonable. There is no error of misapprehension of facts due to violation of the rules of evidence, nor any error of misapprehension of legal principles, as argued in the grounds of appeal. The Supreme Court Decision 91Da12820 rendered on July 23, 1991, cited in the grounds of appeal, concerns a case with different facts from this case and thus does not serve as an appropriate precedent. This ground of appeal is without merit.
2. Defendant's Grounds of Appeal
(1) As to the First Ground of Appeal
As argued in the grounds of appeal, since Plaintiff 1's term of appointment as professor expired and he lost his status as professor on the date of expiration of that term, even if the disciplinary dismissal in this case is confirmed to be void, his status as professor cannot be revived. Therefore, from the standpoint of restoration of professorial status, the action in this case seeking confirmation of the invalidity of the dismissal disposition amounts to nothing more than a claim for confirmation of a past legal relationship.
However, even with respect to a past legal relationship, where it 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 with respect to the present right or legal status, the 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. Accordingly, if the continued existence of the above dismissal disposition is affecting the Plaintiff's rights or legal status other than his status as professor, and if obtaining confirmation of the invalidity of the above dismissal disposition is recognized as an effective and appropriate means of removing danger or uncertainty with respect to such rights or legal status, then seeking confirmation of the invalidity of the above dismissal disposition should be deemed to have the benefit of immediate confirmation.
Now, Article 33, Paragraph 1, Item 8 of the State Public Officials Act (국가공무원법) lists, as a disqualifying ground for public officials, the case where three years have not elapsed since receiving a disposition of dismissal by way of disciplinary action; Article 77, Item 1 of the Education Act (교육법) lists, as a disqualifying ground for appointment as a teacher, the case where a person is unable to hold public office pursuant to other statutes; and Article 54, Paragraph 3 of the Private School Act (사립학교법) provides that, with respect to a person who falls under such disqualifying grounds for appointment as a teacher, a request for dismissal may be made to the person holding the power of appointment and dismissal. In light of each of these provisions, Plaintiff ○○○, due to this dismissal disposition, cannot avoid being treated as disqualified from appointment to public office or as a teacher for three years from the date of the dismissal disposition. Moreover, even after the lapse of such disqualification period, there is no doubt that the history of having undergone a disciplinary dismissal such as in this case would operate as a disadvantageous impediment, compared to a person without such history, in being appointed to public office or as a teacher. Therefore, it should be held that the above Plaintiff has a legal interest in seeking confirmation of the invalidity of the dismissal disposition in this case in order to remove the danger or uncertainty with respect to his legal status enabling appointment to public office or as a teacher (see Supreme Court Decision 91Da1134 rendered on June 25, 1991).
The determination of the court below, made in accordance with this purport, is justified, and there is no error of misapprehension of legal principles regarding the benefit of confirmation, as argued in the grounds of appeal. This ground of appeal is without merit.
(2) As to the Second Ground of Appeal
The court below's factual findings and determination regarding the grounds for the administrative leave disposition and the disciplinary dismissal disposition against Plaintiff 1 are acceptable, and there is no error of misapprehension of facts due to violation of the rules of evidence, nor any error of misapprehension of legal principles regarding the justifiable grounds for the dismissal disposition, as argued in the grounds of appeal. This ground of appeal is likewise without merit.
(3) The Defendant also appealed with respect to Plaintiff 2; however, neither the petition of appeal nor the brief of grounds of appeal dated October 2, 1992 contains any grounds of appeal whatsoever concerning the said Plaintiff, and there is no other ground to be examined ex officio.
3. Therefore, the appeals of Plaintiff 1 and the Defendant are all dismissed, and the costs of appeal are to be borne by each appellant. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Kim Seok-su (Presiding Justice), Choi Jae-ho (Justice in Charge), Bae Man-woon, Choi Jong-young