대학교원기간 임용제 탈락자구제를 위한 특별법상 인용결정의 효력 -재임용거부의 취소에 따른 교수지위확인 판결을 중심으로-

• 영문명: The Effect of Revocation by the Special Committee under the Special Act of 2005 - Focused on the Status of a Plaintiff, when the Exemption from the Reappointment Contract is ex tunc Nullified-
• 발행기관: 대한교육법학회
• 저자명: 이순철(Sun Chol Lee)
• 간행물 정보: 『1. 교육법학연구』제19권 제1호, 127~159쪽, 전체 33쪽
• 주제분류: 사회과학 > 교육학
• 파일형태: PDF
• 발행일자: 2007.06.30

국문 초록

대학교원기간임용 제탈락자구제를 위한 특별법（이하 특별법은 구 사립학교법 해당조항에 대한 헌법불합치 결정을 내림으로써 부당하게 탈락한 교수를 구제하라는 명령에 따른 개선법률(Reparaturgesetz)이다. 특별법상 부당하게 탈락한 교원 에는 아직 정년에 달하지 아니하여 인용결정을 받아 복직하여야 하는 교수뿐만 아니라 정년이 도과된 교수, 사망자도 포함된다. 또한 특별법은 그 제5조(퇴직·사망자의 재심사청구)가 정년초과자와 사망자까지도 청구인 적격을 인정함으로써 구제의 내용이 단순히 명예회복만이 아니라, 상속 가능한 재산적 손해의 전보까지를 포함함을 천명한다. 이 논문은 특별법에 기하여 교육부 교원소청심사위원회에 설치된 재임용재심사특별위원회(이하 위원회)가 내린 인용결정 즉 과거의 재임용거부처분을 취소한다. 는 결정의 효력을 첫째 인용결정인 재임용거부처분의 취소가 가지는 의미, 그리고 둘째 재임용거부처분이 취소됨에 따른 교수지위확인판결의 당위성이라는 두 관점에서 다루었다.

영문 초록

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 p

목차

I. 서론

II. 인용결정은 재임용거부처분의 취소

III. 교수 지위 확인

IV. 결론

키워드

인용결정 취소 헌법소원 결정의 기속력 형성력 재임용기대권 교수지위확인 판결 임기제 Rejection of reappointment Review of rejection by special committee of the Appeal Commission for Teachers Revoke Binding force of decision of constitutional court Right to be reappointed, unless oth