대학교원기간임용제탈락자구제를위한특별법상 “재임용 재심사의 요건과 효과”

The Supreme Court and the Constitutional Court of Korea rejected requests of plaintiffs (professors) exempted from the reappointment contract, on the basis that the rejection of the university trustee is not to be regarded as an act adaptable to be dealt with suit. The courts departed thereby from the notion that the employment contract between the professor and the trustee automatically expires as the duration agreed expires. Thanks to this interpretation of courts against the plaintiff, trustees of korean universities and colleges have been accustomed in dismissing the professors who are well qualified in their field of studies but have tendency to express their opinion frankly. Ironically enough, those professors prominent as political dissidents during the dictatorial regime and whom the dictatorial regimes' introduction of the reappointment system targeted were able be reappointed by civil governments until about 1980s in the course of democratization. About 400 and more dismissed professors who are not regarded as political dissidents have filed the suit, without any positive result. The flood of dismissed professors was caused by the famous amendment of Private School Act of 1990, which encouraged the trustees to notify the hatred professors that they are driven out at any time without due process. In short, at their will. However, in 2003, the Constitutional Court ruled that 2 of paragraph 53 of Private School Act of 1990 does not comply with the korean constitution declaring the obligation of the government to protect the teachers position. This ruling followed by a judgement of the Supreme Court made an amendment of the act and the recovery of the dismissed professors' rights inevitable. In order to meet this ruling the parliament codified 2005 a special act having ex tunc effect, named Daehakkyowon Kikanimyongje Talakja Kujerul wihan Teukbyolbob (Special Act for Recovery of Professorship of the Dismissed). According to this special act a dismissed professor can be reappointed, when the rejection of reappointment of trustee is proved to be unjust. The Special Committee of the Appeal Commission for Teachers attached to the Ministry of Education should judge wether the rejection was based on the one or more of the criteria: Teaching, Researching and others. In this article I discussed the requirements including criterion of reappointment and the effect of the judgement of the Special Committee. I have the opinion that the criterion prescribed in Art. 7 of the act is dubious and extensive. It is therefore a lot of concern that the committee would rather support the past rejection of trustee than make a dismissed professor come back to school and get restitution more easily. Therefore, the criterion should be interpreted in the way that they can cover only the original responsibility of university professors, i.e, research and education. In other words, only a poor academic achievement of the dismissed can be the reason justifying the rejection of reappointment. In regard to the evaluation, tangible materials representing the academic achievement must come at first to be taken into account. When the committee judges the rejection was unjust, it means the rejection is revoked. The dismissed shall recover the deprived position at once, without any further action and his position is considered to be continued until now.