대학교원기간임용제탈락구제를위한 특별법상 인용결정의 효력 -재임용거부의 취소에 따른 교수지위확인 판결을 중심으로-

Abstract

The Special Committee attached to the Appeal Commission for Teachers has examined whether rejections of reappointment by employers were based on the criterion: Teaching, Researching and other requirements. The committee "Revoked" about 127 cases, or 40 % of cases applied as unjustified rejection of reappointment. It goes without saying, that Revoke means ex tunc nullification of the past rejection of reappointment. But, a Daejon local court defeated plaintiffs in a couple of suits, reasoning that the decision of the Special Committee is hard to attribute to a compulsory reappointmet, neither a damages for tort. The judgement obviously derives its logic from the decision of the Constitutional Court of Korea on the Special Act for Recovery of Professorship of the Dismissed(Daehakkyowon Kikanimyongje Talakja Kujerul wihan Teukbyolbob)2005. The Constitutional Court rejected (as constitutional declared) the constitutional complaint petitioned by Chosun university trustee with only the Article 9 paragraph 1 of the act accepted(unconstitutional). However, the decision based itself with the reasoning subjected to see as obiter dicta. The status of the Constitutional Court of Korea differs from that of the Federal Rebublic of Germany, in which not only verdicts of the Bundesverfassungsgericht accepting the petition, but also rejecting verdict also bind the judicial courts. Daejon court seems to take the decision of 2006honma1119 for granted. It is not a decision accepting the petition, but a rejection of petition which has no binding force to the court. Furthermore, the Supreme Court of Korea does not follow the decisions of the Constitutional Court which interprets a certain act or certain paragraphs of act in some way or other. According to the supreme court it could be unconstitutional, because the power to interprete the law lies exclusively in the court, while the power to decide whether an act constitutional or not in the constitutional court. The supreme court and the constitutional court as well were the opinion that the status of plaintiff is not that of professor, for the professorship expires automatically by the term agreed. Courts represented thereby the opinion that the rejection of the university trustee is not to be regarded as an act adaptable to be dealt with suit. Courts used to go from the notion that the reappoint system of korea identical with nontenure system of the USA. Korean system is however hardly the same as that of america, neither that of Germany. According to this opinion it is not necessary for the court to examine if the rejection of prolongation justifiable or not, what makes the purpose of the professors reappoint system of korea never accomplished. This opinion was, therefore, declared as incompatible with the Constitution 2003 in the case of 2000honba26 and no longer to accept. The purpose of the special act, "to protect and safeguard of unjustly rejected professors" (Art. 1) can only be fulfilled, when every sort of plaintiff is able to be enclosed under a same methode of protection and safeguard. As a conclusion, I suggested that the court should accept that the plaintiff has been stayed in the previous position as if he has never been dismissed. This means the court should change its opinion to one that the supreme court represented in case of 77da300, 28.9.1977. According to the judgement on 77da300 case, the plaintiff sustains his position unless there is certain special reason that the prolongation of contract is not to accept. This case was the first case the supreme court judged. The represented opinion of the justices in this case was later changed into the mentioned above without any reasonable explanation. Consequently, the right to be reappointed of a plaintiff whose appeal accepted by the Special Committee for Retest of Rejection of Reappointment should be regarded as unjustifiably infringed by the trustee. Courts are subjected to accept the suit and confirm the position of plaintiff which articles 148 and 150 of the Korean Civil Code prescribe. The plaintiff is legitimate to have enjoyed, if he would not have been dismissed unjustifiably.