【Holding】
Where a private school teacher subject to disciplinary action requested to make a statement before the teachers' disciplinary committee in the presence of an attorney, or an attorney retained by the teacher subject to disciplinary action requested to appear before the teachers' disciplinary committee and present the necessary opinions on behalf of the teacher, but the employer refused such request, the validity of the disciplinary action taken pursuant to the deliberation and resolution of the teachers' disciplinary committee (void)
【Summary of Decision】
Where disciplinary provisions in a collective agreement, rules of employment, etc. prescribe the granting of an opportunity to make a statement to a person subject to disciplinary action as an obligation of the employer, this is intended to secure the objectivity and fairness of disciplinary action and constitutes a requirement for the validity of the disciplinary action; therefore, disciplinary action taken in violation of such procedure is void as an act contrary to procedural justice, regardless of whether grounds for disciplinary action are recognized.
In light of the provisions and purport of the administrative procedure statutes, such as Article 12(1)3 and (2) and the main text of Article 11(4) of the Administrative Procedures Act, as well as the constitutional principle of the rule of law and the principle of due process, it is necessary in disadvantageous disposition procedures, such as disciplinary action against public officials including teachers of national and public schools, to guarantee a person subject to disciplinary action the exercise of the right of defense through an attorney, and the appearance before the disciplinary committee by an attorney retained by the person subject to disciplinary action to present the necessary opinions on behalf of that person constitutes the essential content of the exercise of the right of defense; therefore, an administrative agency may not refuse it unless there are special circumstances.
Article 31(6) of the Constitution provides that basic matters concerning the status of teachers shall be determined by statute. The basic matters that the legislature must determine by statute include, above all, matters concerning the minimum duty of protection to ensure that teachers are not unjustly deprived of their status. Accordingly, the Private School Act applies mutatis mutandis the provisions on teachers of national and public schools to the qualifications and service of private school teachers (Articles 52 and 55), and gives concrete form to the guarantee of the status of private school teachers by providing that they shall not be subjected to disadvantageous dispositions, such as leave of absence or dismissal, against their will except by the sentence of punishment, disciplinary disposition, or the grounds prescribed in the same Act (main text of Article 56(1)). Furthermore, with the enactment of the Special Act on the Improvement of Teachers' Status and the Protection of Their Educational Activities (hereinafter the "Teachers' Status Act") on May 31, 1991, private school teachers, like teachers of national and public schools, became able to file an appeal for review and, if dissatisfied with the decision, to bring an administrative suit. The purport of the Teachers' Status Act in uniformly prescribing the appeal procedures of private school teachers and teachers of national and public schools concerning disadvantageous dispositions against their will, such as disciplinary action, is to guarantee the status of private school teachers and promote the improvement of their status at a level at least corresponding to the relief procedures for teachers of national and public schools by enabling private school teachers as well to file an appeal for review, etc. against disadvantageous dispositions against their will, such as disciplinary action by the school juristic person. In light of such purport, it is necessary to protect the level of guarantee of procedural rights recognized for private school teachers in disciplinary procedures so that it may correspond to the level recognized for teachers of national and public schools.
Meanwhile, the Private School Act makes the deliberation and resolution of the teachers' disciplinary committee an essential procedure for disciplinary action, and amply guarantees procedural rights in disciplinary procedures against private school teachers by, among other things, providing for provisions to secure the fairness of disciplinary procedures, such as limiting the number of disciplinary committee members who are directors of the relevant school juristic person (Article 62), and a provision requiring notification to the person subject to disciplinary action of the grounds for the request for a disciplinary resolution (Article 64-2).
Moreover, Article 65(1) of the Private School Act expressly guarantees the right of defense of a person subject to disciplinary action by providing that the teachers' disciplinary committee shall hear the statement of the person concerned before making a disciplinary resolution. Considering together, in addition, the necessity, as seen above, of protecting the procedural rights of private school teachers, who are in charge of public education together with teachers of national and public schools, so that they correspond to the procedural rights of teachers of national and public schools, and the purport of Article 9(1) of the Teachers' Status Act, which provides that a teacher may retain an attorney as an agent when filing an appeal for review with the Teachers' Appeal Commission, the attendance by an attorney retained by a private school teacher at the teachers' disciplinary committee together with the private school teacher to present the necessary opinions on behalf of the teacher likewise constitutes the essential content of the exercise of the right of defense, and the employer may not refuse it unless there are special circumstances.
Therefore, where a private school teacher subject to disciplinary action requested to make a statement before the teachers' disciplinary committee in the presence of an attorney retained by the teacher, or an attorney retained by the teacher subject to disciplinary action requested to appear before the teachers' disciplinary committee and present the necessary opinions on behalf of the teacher, but the employer refused such request, the disciplinary action taken pursuant to the deliberation and resolution of such teachers' disciplinary committee was taken without substantively guaranteeing the right of defense of the person subject to disciplinary action and thus has a serious procedural defect, and is therefore, in principle, without effect.
【Referenced Statutes】
Article 31(6) of the Constitution; Articles 11(4) and 12(1)3 and (2) of the Administrative Procedures Act; Articles 52, 55, 56(1), and 65(1) of the Private School Act; Articles 9(1) and 10(4) of the Special Act on the Improvement of Teachers' Status and the Protection of Their Educational Activities
【Referenced Precedents】
Supreme Court Decision 90Da8077, July 9, 1991 (Gong1991, 2112)
Supreme Court Decision 92Da14786, July 28, 1992 (Gong1992, 2645)
Supreme Court Decision 2016Du33339, March 13, 2018 (Gong2018Sang, 697)
Supreme Court Decision 2022Du43405, September 12, 2024 (Gong2024Ha, 1640)
Constitutional Court en banc Decision 2000Hun-Ba26, February 27, 2003 (HunGong78, 234)
(Source: Supreme Court Decision 2024Du61155, August 13, 2026 | Judicial Information Disclosure Portal, Supreme Court of Korea)
2026. 10. 26. · By Attorney Dongwoo Shin
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