사립학교 교원에 대한 징계처분의 불복절차 - 학교법인의 행정소송 원고적격을 중심으로 -

Abstract

A Special Act on the teachers' status was enacted and enforced on May 31, 1991. The purpose of this Special Act was to improve the teachers' status and to strive for the development of education, by giving them honorable treatment, improving the treatment on the teachers and consolidating the guarantee on their status. First of all, the Special Act enabled the disciplined private school teachers, like the national-public school ones, to applicate for the retrial to the Appeal Commission, which was established in the Ministry of Education, so they could raise Administrative litigation in case that this Appeal Commission rejected the request of the private school teachers. In the previous Act, by the way, the plantiff who could raise the Administrative litigation was limitted in the displined private school teachers, so the Education Foundation which objected to the decision of the Appeal Commission couldn't raise the Administrative litigation. Therefore, it was argued that the provision of the Special Act might infringe the constitutional rights, (the right of access to courts, the right of equality) of the Education Foundation. On the above issue, the constitutional Court concluded that the provision of the previous Act was constitutional in 1998, but inconstitutional in 2006. Because the Constitutional Courts decided the provision of the previous Act was against the constitution, it was revised on May 11, 2007, so that the Education Foundation could raise the Administrative litigation. Although the Appeal Commision accepts the request of the private school teachers, it will not be administrated until the court gives a final decision, if the Education Foundation raises the Administrative litigation. Therefore, the status of the private school teachers is more disadvantegeous than that of the general workers, not to mention that of national-public school teachers. Therefore, it is necessary that the Special Act should be revised to establish the institution of the charge for compelling the performance, the emergent implementation order, and the criminal disposition of default on the final decision in order to guarantee the private school teachers' status by making sure the effective performance of the Appeal commission' decision.