[2] Criteria to determine whether an application for reappointment of a university faculty member is found intentional or negligent in taking measures against an educational foundation that did not resume the examination procedure for reappointment even though the applicant had confirmed his/her intention

[3] The point at which a tort was committed on the ground that a school juristic person did not resume the procedure for review of reappointment even if an applicant for review of a teacher of a private university, who could have been reappointed if he/she had been duly re-appointed, objectively confirms such intention (negative)

[4] Act applicable to the calculation of retirement benefits for a teacher of a private school (=the Pension for Private School Teachers and Staff Act)

[2] Although the intention of an applicant for reappointment of a university faculty member has been confirmed, it shall be recognized by intention or negligence in order for a school juristic person to be held liable for property damage on the ground that the school juristic person did not resume the procedure for review of reappointment. Moreover, the school juristic person’s failure to resume the procedure for examination of reappointment is not deemed justifiable in the past. Thus, the school juristic person’s intention or negligence in relation thereto shall be determined based on whether the school juristic person’s failure to resume the procedure for examination of reappointment led to the extent that the school juristic person lost objective legitimacy by failing to exercise its duty of care in light of the following: (a) details and nature of grounds for refusal of reappointment in the past; (b) the degree of contribution of the relevant school juristic person to such refusal; (c) the relevant school juristic person’s explanation or degree in the procedure for examination of reappointment; (d) the existence and content of grounds for refusal of reappointment, and (e) the entire progress

[3] In principle, tort on the ground that an applicant for reexamination of a teacher of a private university who could have been reappointed if he/she had been duly re-appointed after the Constitutional Court Decision 2000Hun-Ba26, March 27, 2003, objectively confirmed that the school juristic person did not resume the procedures for examination of reappointment even though the applicant for reexamination of reappointment had been duly confirmed, in principle, on the ground that the school juristic person did not resume the procedures for examination of reappointment, does not directly express his/her intention of refusal or resume the procedures for examination of reappointment for a considerable period of time. When the school juristic person committed an act that is deemed as having expressed his/her intention of refusal, such as directly expressing his/her intention of refusal or not re-appointed the procedures for examination of reappointment, it violates the right to demand fair examination based on reasonable standards as to whether he/she is reappointed. Accordingly, it cannot be deemed that the school juristic person continues to have continuously committed a new harmful act on the ground that the procedures for examination of reappointment have not been commenced. Accordingly, if the school juristic person fails to resume the aforementioned procedures, it cannot be deemed a tort.

[4] In calculating the retirement benefits of a teacher of private school, not the Guarantee of Workers' Retirement Benefits Act but the Pension for Private School Teachers and Staff Act shall apply.

1. As to the defendant's grounds of appeal regarding the time of confirming the plaintiff's request for review of reappointment

The procedure for reappointment of a teacher of a private university, appointed by the fixed-term system for university faculty members, is normally conducted in the order of application for reappointment, examination of reappointment, and determination of whether to be reappointed, and if a decision to refuse reappointment has already been made in the examination for reappointment and retirement measures have already been taken upon the expiration of the term of appointment, the procedure for reappointment shall be deemed completed. Therefore, in accordance with the general concept of deeming that the procedure for reappointment has been completed, even though the Constitutional Court's decision of inconsistency with the Constitution prior to the decision of inconsistency with the Constitution was unlawful before the decision of inconsistency with the Constitution was rendered on March 27, 2003, to recognize liability for damages caused by tort on the ground that a school juristic person after the decision of inconsistency with the Constitution was made to reject reappointment of a teacher, the relevant teacher must be objectively confirmed (see, e.g., Supreme Court Decision 2007Da

Meanwhile, the relevant teacher’s request for reexamination may be expressed directly through an act of urging or requesting an examination of reappointment to a school juristic person. However, as such, in the case of filing a lawsuit seeking confirmation of invalidity of a decision to refuse reappointment against the school juristic person, or filing a petition for reexamination under the Special Act on the Relief of Persons Disqualified from Appointment of Fixed-Term Faculty (hereinafter “Special Act on Remedy”) (see, e.g., Supreme Court Decisions 2012Da7618, May 9, 2012; 201Da86027, Jun. 28, 2012). However, the relevant doctor is deemed to have objectively confirmed the genuine intent of the relevant school juristic person to serve as a teacher if reappointed to the relevant school juristic person, and such decision ought to be individually determined based on specific circumstances, such as the process of the application for reexamination and the situation of the relevant teacher (see, e.g., Supreme Court Decision 201Da95700, May 10, 2012).

The lower court determined that on March 9, 2006, the Plaintiff’s filing of a request for reexamination of reappointment against the Defendant with the Special Committee on the Appeal against Teachers (hereinafter “Special Committee”) on March 6, 2006 pursuant to the Special Act on Remedies, and that the Plaintiff’s filing of a request for reexamination against the Defendant was objectively confirmed. In light of the aforementioned legal principles and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the validity of the decision on revocation of the Special Committee and the timing of the occurrence of the obligation for reexamination, contrary to what is alleged in

2. As to the Defendant’s ground of appeal as to whether property damage liability arises

In order for a school juristic person to be held liable for property damage on the ground that the school juristic person did not resume the procedures for review of reappointment notwithstanding confirmation of the intention of applying for reappointment of fixed-term faculty members, the measures taken by such school juristic person shall be recognized. Moreover, the school juristic person’s failure to resume the procedures for review of reappointment is not deemed justifiable in the past. Therefore, the school juristic person’s intention or negligence in relation thereto shall be determined on the basis of whether the school juristic person’s failure to resume the procedures for review of reappointment led to the degree of loss of objective legitimacy by lack of objective duty of care (see, e.g., Supreme Court Decision 2007Da42433, Jul. 29, 2010).

The court below acknowledged the facts as stated in its decision based on its adopted evidence. (1) The defendant's failure to conduct the review of reappointment against the plaintiff despite the plaintiff's application for review of reappointment is not deemed justifiable and maintained as at the time of the rejection of reappointment. Thus, the defendant's error in the decision of refusal of reappointment in this case can be evaluated as a mistake in failing to conduct the review procedure for reappointment against the plaintiff despite the plaintiff's application for review. (2) The defendant can be viewed as excluding the plaintiff from the retirement age guarantee appointment without an objective ground despite the plaintiff's fulfillment of the criteria for review of the retirement age guarantee at the time of the decision of refusal of reappointment, on the ground that the defendant can be viewed as being disqualified from the retirement age guarantee appointment without an objective ground, and the defendant can be viewed as refusing the reappointment if he had undergone a legitimate review of reappointment, and it can be viewed as having lost the objective legitimacy of the decision of refusal of reappointment due to lack of objective duty of care when considering the defendant's common university standard. (3) The defendant is liable for compensation for property damage suffered by the plaintiff.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s aforementioned determination is based on the legal doctrine as seen earlier. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding deviation, abuse of discretion and intentional or negligent conduct, or by exceeding the bounds

3. As to the Defendant’s ground of appeal relating to the time when the liability arises

A. Illegal acts on the ground that an applicant for reexamination of a teacher of a private university, who could have been reappointed if he/she had been re-appointed after the decision of inconsistency with the Constitution in 2003, objectively confirmed that the school foundation did not resume the procedures for reexamination of reappointment at all, on the ground that, in principle, an unlawful act committed by the school foundation on the ground that the relevant teacher did not directly express his/her intention of rejection or not re-examine the procedures for examination of reappointment within a considerable period of time necessary for the procedures for examination of reappointment, etc., without re-appointing the procedures for examination of reappointment, is constituted and terminated as a violation of the right to demand fair examination based on reasonable standards as to whether the relevant teacher is reappointed. Accordingly, it is reasonable to view that a new harmful act by the school foundation continues to have been committed on the ground that the procedure for examination of reappointment has not yet commenced. Accordingly, a tort committed on the ground that the relevant school foundation did not resume the procedures for examination of reappointment cannot be deemed as a continuous tort.

B. According to the reasoning of the judgment below and the records, the plaintiff filed a petition for review of reappointment against the defendant with the Special Committee on March 6, 2006 on the ground that the decision to refuse reappointment against the plaintiff was unfair, and the written petition was served on March 9, 2006. The Special Committee rendered a decision to revoke the decision to refuse reappointment of this case on June 7, 2006. The defendant dissatisfied with the decision filed a lawsuit seeking the revocation of the above decision to revoke the revocation on July 28, 2006 (Seoul Administrative Court 2006Guhap27380), and the Seoul Administrative Court rendered a judgment to dismiss the defendant (the plaintiff of the above administrative litigation)'s claim on May 30, 207. The defendant appealed and appealed all of the appeal, but it became final and conclusive on February 28, 2008.

Examining the above facts in light of the legal principles as seen earlier, it is reasonable to view that the defendant did not commence the procedure for review of reappointment after confirmation of the plaintiff's intention of the application for reappointment, but did not accept the decision of refusal of reappointment, and the defendant did an administrative litigation without any specific ground, and the defendant did an act identical to the expression of the defendant's intention of refusal at that time. Thus, it is reasonable to view that the tort committed on the ground that the defendant's refusal of review of reappointment against the plaintiff was not resumed the procedure for review of reappointment of the defendant's decision of refusal of reappointment was established around July 28, 2006, which was filed by the defendant against the decision of revocation of the special committee on the decision of refusal of reappointment of this case. The defendant's damage to the plaintiff due to the

Nevertheless, the lower court determined that the Plaintiff suffered damages from March 9, 2006 due to the Defendant’s above tort. In so doing, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the timing of occurrence of liability for damages. The Defendant’s ground of appeal assigning this error is with merit.

4. Plaintiff’s ground of appeal related to wage amount

The plaintiff's ground of appeal is nothing more than an error of the selection of evidence and fact-finding, which belong to the free trial of the court below, which is a fact-finding court, and therefore does not constitute a legitimate

5. As to the defendant's ground of appeal related to the claim for property damage equivalent to the lost retirement allowance

After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning. On March 10, 2006, the lower court ordered the Defendant to compensate for damages equivalent to retirement allowances under Article 8 of the Guarantee of Workers' Retirement Benefits Act, on the premise that the Plaintiff will serve on November 18, 2010, which is the date of closing argument in the lower court.

However, when calculating the retirement benefits of the teacher of private school, not the Guarantee of Workers' Retirement Benefits Act but the Pension for Private School Teachers and Staff Act should be applied (see Supreme Court Decision 95Da19416 delivered on July 28, 1995, etc.).

Therefore, the lower court erred by misapprehending the legal principles on retirement benefits of private school teachers, thereby adversely affecting the conclusion of the judgment. Therefore, without examining the Defendant’s remaining grounds of appeal on the claim for damages equivalent to retirement allowances, the part against the Defendant in the claim for damages equivalent to the Plaintiff’s retirement allowances against the Defendant cannot be reversed.

6. As to the grounds of appeal by the plaintiff and the defendant related to the occurrence of mental damage liability and restriction of property damage liability

A. Based on the facts examined in the above 2.1, the court below acknowledged that the defendant's decision to refuse reappointment against the plaintiff is not due to the plaintiff's lectures and the injury to dignity as a professor, but it is obvious that abuse of university's discretion can not be accepted in our sound social norms or social norms, and thus, the defendant is responsible for compensating for mental damage suffered by the plaintiff. On the other hand, the plaintiff was under the influence of alcohol, under the influence of alcohol, under the influence of alcohol, under the influence of alcohol, under the influence of alcohol, under the influence of alcohol, or under the influence of alcohol, and contributed to the decision to refuse reappointment of this case. The court below held that the defendant's liability ratio for each property damage equivalent to the actual wages and retirement allowances should be determined to the extent of 70% of the defendant's liability for each property damage equivalent to the retirement allowances, considering these errors by the plaintiff.

B. In order to claim consolation money on the ground that a private university teacher was suffering from property damage, other than property damage, due to the illegal refusal of reappointment, if the school foundation intentionally refused reappointment on the ground of another name under the intention to find out the university or college although there is no reason to refuse reappointment, or if it objectively apparent and exercises considerable attention that a fact, which was the ground for refusal of reappointment, does not constitute grounds for review of reappointment, such as personnel regulations, or cannot constitute grounds for refusal of reappointment, or cannot constitute grounds for refusal of reappointment, such circumstance can be easily identified. However, it is obvious that the abuse of discretion by the university on the examination of reappointment, such as refusal of reappointment, is not permissible under our sound social norms or social norms (see, e.g., Supreme Court Decision 2007Da42433, Jul. 29, 2010). The court below held that the defendant's refusal of reappointment based on the above legal principles, based on the recognition of mental damage by the plaintiff, was made by the professor of this case, and the injury to the dignity of the plaintiff, which was not caused by demotion.

However, if the Plaintiff’s attitude of demotion and injury to dignity as a professor are not the cause of refusal of reappointment of this case, but merely nominal, this conflict with the court below’s decision that recognized that the court below contributed to the considerable portion of the decision on refusal of reappointment of this case due to the negligence of working attitude or demotion during the Plaintiff’s tenure of office and criticism against the Defendant and the school, as stated in its reasoning, while limiting property liability for damages.

According to the above legal principles, in order to recognize mental damage with respect to a tort resulting from denial of reappointment, it should be clear that such tort is much more clear than where property damage is recognized, and further, if it is clear that such tort is an obvious tort to the extent that mental damage is recognized, and if the fault of university faculty, which caused the refusal of reappointment cited by the school foundation, is merely a name, it is necessary to carefully determine whether there is any reason to restrict the property damage liability of the school foundation. Therefore, the court below should have carefully deliberated and determined whether mental damage may be recognized according to the above legal principles on the premise of the determination of refusal of reappointment after clarifying whether the Plaintiff’s act, which is the ground for restriction of property damage liability, contributed to the decision of refusal of reappointment of the case, and if mental damage is recognized, it should have determined

C. Nevertheless, the court below acknowledged the defendant's mental damage liability based on each circumstance as stated in its holding, and at the same time limited the defendant's property damage liability. Such judgment of the court below is erroneous in the misapprehension of legal principles as to admission of mental damage liability and comparative negligence and limitation of liability, which affected the conclusion of the judgment.

7. Conclusion

Therefore, without examining the remaining grounds of appeal by the Plaintiff and the Defendant, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)