[재임용거부처분무효확인등·부당이득금반환] 항소[각공2013하,684]
In a case where Eul, appointed as an assistant professor of a university operated by Gap, was promoted to the position of associate professor during the term of appointment, and Gap corporation rejected the reappointment of Eul after the expiration of the term of appointment, the case holding that Gap corporation's refusal of reappointment made during the term of appointment is null and void since the term of appointment is newly calculated from the time Eul was promoted to the associate professor;
In a case where Gap corporation promoted Eul who was appointed as a assistant professor of Eul's university operated by Gap corporation as an associate professor during the term of appointment, and Gap corporation rejected the reappointment of Eul after the term of appointment expired, the case holding that Gap corporation's refusal of reappointment during the term of appointment constitutes a tort against Eul on the ground that Gap corporation was null and void since it did not go through the disciplinary procedure under the Private School Act even though Eul corporation's refusal of reappointment during the term of appointment constitutes a disposition of dismissal or equivalent action, since it violated the Private School Act by itself, and thus, it was disqualified due to its violation of the objective duty of care and thus, it constitutes a tort against Eul.
Article 53-2 (3) of the Private School Act, Article 5-3 (1) of the Decree on the Appointment of Educational Officials, Article 750 of the Civil Act
Plaintiff (Law Firm branch, Attorneys Hong-min et al., Counsel for the plaintiff-appellant)
Korea Educational Institute (Law Firm LLC, Attorneys White-sung et al., Counsel for the defendant-appellant)
March 28, 2013
1. On March 13, 2012, the Defendant (Counterclaim Plaintiff) confirmed that an action for dismissal against the Plaintiff (Counterclaim Defendant) was invalid.
2. The Defendant (Counterclaim Plaintiff) pays 100,744,00 won to the Plaintiff (Counterclaim Defendant) and 5% per annum from July 4, 2012 to July 25, 2013; and 20% per annum from the next day to the day of full payment; and 5,632,00 won per annum from June 1, 2012 to February 28, 2013 to the day of full payment.
3. The plaintiff (Counterclaim defendant)'s remaining main claims and the defendant (Counterclaim plaintiff)'s counterclaim are dismissed, respectively.
4. The costs of lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the remainder, respectively, by the Plaintiff (Counterclaim Plaintiff).
5. Paragraph 2 can be provisionally executed.
In the principal lawsuit: It is confirmed that the disposition of dismissal against the Plaintiff (Counterclaim Defendant; hereinafter “Defendant”) on March 13, 2012 by the Defendant (Counterclaim Defendant; hereinafter “Plaintiff”) is null and void. The Defendant pays to the Plaintiff the amount calculated at the rate of 20% per annum from the day following the delivery date of the duplicate of the complaint in this case to the day of complete payment, and the amount calculated at the rate of 5,632,00 won per annum from June 1, 2012 to the day of full payment.
Preliminary, it is confirmed that the Defendant’s disposition rejecting reappointment against the Plaintiff on March 13, 2012 is null and void. The Defendant pays to the Plaintiff the amount calculated at the rate of 20% per annum from the day following the delivery date of a copy of the instant complaint to the day of complete payment, and the amount calculated at the rate of 5,632,00 won per annum from June 1, 2012 to the day of complete payment.
Counterclaim: The plaintiff shall pay to the defendant 16,32,90 won with 5% interest per annum from January 1, 2011 to the service date of a duplicate of the counterclaim of this case, and 20% interest per annum from the next day to the day of complete payment.
1. Basic facts
A. On September 1, 2007, the Plaintiff was appointed as an associate professor from September 1, 2007 to August 31, 2010, with the term of appointment as the Defendant’s regular university’s ○○○○ University, which was operated by the Defendant, and was appointed as an associate professor on March 1, 2010.
B. On May 13, 2010, the Plaintiff was investigated by the Korea University Gender Equality Center as a case of indecent act by force against graduate students.
C. Under the premise that the Plaintiff’s employment period expires on August 31, 2010, the Defendant reserved the Plaintiff’s re-employment review until the result of the investigation into the instant case was reached. Accordingly, the Defendant did not assign the Plaintiff the two semesters lecture from September 2010 to December 2010, but paid the Plaintiff the amount of KRW 16,332,90 as wages from September 201 to December 201.
D. The Defendant’s personnel committee decided to refuse reappointment on January 12, 201, on the ground that the Plaintiff damaged his/her dignity as a teacher due to indecent acts by compulsion. Accordingly, the Defendant rendered a disposition rejecting reappointment against the Plaintiff on January 12, 201 (hereinafter “the first disposition refusing reappointment”).
E. On April 18, 201, in the examination of a teacher’s petition filed by the Plaintiff against the rejection of the first reappointment, the Appeal Commission of Teachers revoked the first disposition on the ground that the procedure defect was not followed by the resolution of the board of directors set forth in the Defendant’s articles of incorporation. Accordingly, the Defendant rendered a disposition of refusal of reappointment against the Plaintiff on March 13, 201, following the resolution of the board of directors, for the same reason as the first disposition of refusal of reappointment against the Plaintiff (hereinafter “instant disposition of refusal of reappointment”).
F. The provisions of the Private School Act, the Decree on the Appointment of Educational Officials, and the Articles of Incorporation of the Defendant are as follows.
/ Private School Act
Article 53-2 (Appointment and Dismissal of Teachers Other Than Heads of Schools)
(3) Teachers of a college educational institution may be appointed by determining contract terms, such as period of service, salary, conditions of service, and agreement on achievements and work performance, as prescribed by the articles of incorporation. In such cases, the relevant provisions applicable to teachers of national or public universities shall apply mutatis mutandis
【Appointment of Educational Officials
Article 5-3 (Calculation of Term of Appointment for University Faculty Members)
(1) The term of appointment under the provisions of Article 5-2 shall be calculated based on the date of appointment under the provisions of Article 5, but if he is promoted, changed of position or demoted while in office, the relevant period of appointment shall be calculated again from that time
【Articles of Incorporation
Article 43 (Dismissal)
(2) Teachers of a college educational institution other than the head of a school shall be appointed or dismissed by the head of the school with the consent of the board of directors after deliberation of the personnel committee. In such cases, teachers of professors or associate professors shall be appointed by
[Reasons for Recognition] Facts without dispute, Gap's entries in Gap's 2, 4, 6 through 10, 12, 13, 18, 19, 21 through 24, 39, Eul's 1 through 5 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings
2. Determination on the main claim
A. The plaintiff's assertion
1) The primary claim
The plaintiff was promoted as an associate professor on March 1, 2010, and Article 43 (2) of the defendant's articles of incorporation set the term of appointment as an associate professor up to the retirement age. Accordingly, according to the above promotion of associate professor, the employment contract between the plaintiff and the defendant was newly concluded between the plaintiff and the defendant to the retirement age. Even if it is not so, as the plaintiff is promoted as an associate professor, the term of appointment from March 1, 2010 to February 28, 2013 is newly calculated in accordance with Article 5-3 (1) of the Decree on the Appointment of Education.
Therefore, the rejection disposition of this case made during the term of appointment of the plaintiff constitutes an action of dismissal actually, and the dismissal disposition is null and void due to reasons such as not going through disciplinary proceedings.
Therefore, the Defendant is obligated to pay the Plaintiff wages of KRW 95,74,00,00, which is the day following the final payment of the Defendant’s wages, to May 31, 2012 (i.e., monthly wage of KRW 5,632,00 x 17 months), 10,74,000, 100,000, 105,744,000, and damages for delay, and the amount for delay thereof, calculated at the rate of KRW 5,632,00 per month from January 1, 201 to May 31, 2012.
2) Preliminary Claim
Even if the Plaintiff’s term of appointment expired on August 31, 2010, the Defendant rejected the Plaintiff’s legitimate trust by refusing to re-appointing the Plaintiff in June and August 2010, even though the Defendant notified the Plaintiff of re-appointing, thereby infringing on the Plaintiff’s justifiable trust. Since the Plaintiff satisfied all the criteria for re-appointing, the instant refusal disposition is null and void as it deviates from and abused the Defendant’s discretion regarding re-appointing.
Therefore, the defendant is obligated to pay wages and consolation money as seen earlier to the plaintiff.
B. Determination
Article 43 (2) of the Defendant’s articles of incorporation is only a provision concerning the term of appointment when a professor or associate professor is appointed. As seen earlier, the Plaintiff is not an associate professor as an associate professor, but an associate professor as an associate professor during the term of appointment of an assistant professor. Thus, the above provision cannot be applied.
However, according to the above provisions of the Private School Act and the Decree on the Appointment of Educational Officials, the term of appointment should be calculated again from the time of promotion of private university teachers. Thus, the term of appointment of the plaintiff should be calculated again from March 1, 2010, which is an associate professor, to the first three years of employment. Therefore, the new term of appointment of the plaintiff is up to February 28, 2013, and the defendant's refusal to renew the appointment of the plaintiff on March 13, 2012, which was made by the defendant on March 13, 2012 (the effective date, August 31, 2010), constitutes a disposition of dismissal or equivalent disposition since the defendant depriveds of the status of a teacher on the ground of his unilateral intention. Accordingly, in order for the defendant to make the above disposition against the plaintiff, the defendant must undergo disciplinary procedures as provided in
However, there is no dispute between the parties that the defendant did not undergo the disciplinary procedure while making the above disposition against the plaintiff, and thus the above disposition of dismissal is null and void because there is a defect that did not undergo the disciplinary procedure. In addition, the defendant's failure to undergo the disciplinary procedure while taking the disposition against the plaintiff violates the Private School Act by itself, and therefore, it has lost legitimacy by exercising objective duty of care, thereby constituting
Therefore, the defendant shall pay to the plaintiff the amount of consolation money due to wages and tort during the period of dismissal, and according to the evidence No. 17, the plaintiff can be acknowledged that he received wages of KRW 5,632,00 per month from the defendant before dismissal, and in light of all the circumstances, including the circumstances and contents of the disposition of dismissal in this case, it is reasonable to view that the amount of compensation for mental damage that the plaintiff received is KRW 5,00,000
Therefore, the Defendant’s assertion that: (a) the amount of KRW 95,744,00 paid to the Plaintiff from January 201 to May 2012 (=5,632,00 won x 17 months); (b) the sum of KRW 5,00,000; and (c) the amount of KRW 100,74,000 from July 4, 2012 to February 28, 2013, the following day after the copy of the instant complaint was served on the Defendant, that the Defendant raised a dispute as to the existence and scope of the obligation; (d) the annual rate of KRW 5% as stipulated in the Civil Act from July 25, 2013 to the date of full payment; and (e) the damages for delay calculated annually from June 1, 2012 to February 28, 2013; and (e) the Plaintiff’s claim that the Defendant dismissed the appointment of at least 36,000 won.
3. Judgment on the counterclaim
A. The defendant's assertion
The Plaintiff was paid KRW 16,332,90 from September 2010 to December 201 of the same year despite the expiration of the term of appointment on August 31, 2010, and the Plaintiff was not demoted in the second semester of 2010, and the Plaintiff was obligated to return it as unjust enrichment.
B. Determination
The defendant did not calculate the plaintiff's term of appointment by February 28, 2013 according to the promotion of associate professors, and found that the term of appointment expires on August 31, 2010, and did not assign lectures from September 2010 to December 2010 while reserving the appointment of the plaintiff until the investigation into the indecent act by force against the plaintiff led to the investigation into the case of indecent act by force against the plaintiff. Accordingly, the plaintiff's failure to give lectures during the above term of appointment is caused by the defendant's cause attributable to the defendant. Thus, the defendant should pay wages to the plaintiff in accordance with Article 538 (1) of the Civil Act. Therefore, it cannot be deemed that the plaintiff unjust enrichmentd the plaintiff's wages of KRW 16,32,90.
4. Conclusion
The plaintiff's main claim among the main claim is justified within the scope of the above recognition, and the remaining main claim and the defendant's counterclaim are dismissed as they are without merit.
Judges Jeong Chang-hee (Presiding Judge)