「대학교원기간임용제탈락자구제를위한특별법」의 성격과 “구제”의 내용 : 최근의 판례들과 관련하여

Abstract

In a couple of constitutional complaints the constitutional court ruled that the Act of 2005( Special Act) is a "Reparaturgestz" required by the declaration of irreconcilability, reiterating the retroactive characteristics of the Act. So the act is consitutional. Although the constitutional court explained in the reasoning of it's ruling of 2005honma1119 that the act is constitutional "because it will not force employers to reinstate dismissed professors nor has any retroactive effects", this has no binding force. This is because, the supreme court of Korea has exclusive power and obligation of interpretation of law, while the constitutional court is authorized only to determine whether a statute constitutional or not (unconstitutional). The supreme court ruled further, parallel with the constitutional court's decision, that the new Private School Act is not to apply for the professors dismissed prior to the coming into effect of the act, since the Special Act was codified instead. The relief of rights and interests of these professors should be secured by the Special Act, not by the new Private School Act, according to the supreme court. The supreme court has not yet mentioned what the 'Relief' prescribed in the act should comprise. Until now, it has been cleared that the defendant's notification(inclusive of implication) of unwillingness to reemploy the plaintiff becomes null if it is not grounded with the fair and justifiable evaluation of accomplishments among many other criteria, in other words, when the notification is based upon arbitrariness or misuse of discretion. Furthermore, the supreme court ruled that the plaintiff is legitimate to claim damages for tort. It has, however, yet to determine whether the dismissed plaintiffs should be reinstated or not. A couple of rulings declared by senates of the supreme court state that the status of a plaintiff is not that of professor, notwithstanding the nullification of the defendant's notification of not lengthening the contract, for the professorship expires automatically by the term agreed. Senates obviously go from the thinking that the constitutional court declared as irreconcilable with the constitution. They assume that the professors in the Re-appoint system of korea identical with the nontenured professors of the USA or some public positions with fixed terms like prosecutor generals or the commanding chiefs of armed forces. Korean system is, however, not the same as that of america, neither that of Germany. According to the official purpose of the Re-appoint system and the practice based on the two parties consensus as well, the status of professors of korea, is supposed to be lengthened unless they cause obviously to be quit. This does not mean, however, all professors are automatically able to stay at their position. Rather, it means that the professorship can be kept only when they succeed in showing themselves to be eligible enough to pass the verification procedure for Re-appointment. So, the rulings of the senates contradict and negate the ruling of the great senate of the supreme court and must be discarded. Lastly, a relief without reinstation would make the Special Act a fake. For these reasons among many others, I reiterate in this thesis that the supreme court should rule that the plaintiff should be reinstated when the defendant's notification is nullified.