[2] A case where a decision to refuse reappointment made before the enforcement of the Private School Act (amended by Act No. 7352 of Jan. 27, 2005), which only applies the "Special Act for the Relief of Persons Deserting the Fixed-Term Appointment System for University Faculty Members", becomes null and void on the ground of a

[3] Requirements for liability for property damage to a school juristic person on the ground that a decision to refuse the reappointment of a fixed-term university faculty member constitutes a tort, and the contents of the liability

[4] The case where a teacher of a private university can claim consolation money in addition to property damage on the ground of his refusal of reappointment

1. As to the Defendant’s ground of appeal

A. As to the claim to nullify invalidity of the decision to dismiss reappointment

(1) According to Article 53-2(3) of the former Private School Act (amended by Act No. 4226, Apr. 7, 1990; Act No. 5274, Jan. 13, 1997); Article 53-2(3) of the former Private School Act (amended by Act No. 6004, Aug. 31, 199; hereinafter referred to as the “former Private School Act”), the Constitutional Court has issued an opportunity to dismiss faculty members from the date of its decision of inconsistency with the Constitution [the Constitutional Court Order 200Hun-Ba26, Feb. 27, 2003; 200Hun-Ba14, 32, etc.; hereinafter referred to as “the unconstitutional Court Order 500Hun-Ba27, Dec. 18, 2003”) and the Act amended by Act No. 1375, Jan. 27, 2005; hereinafter referred to as “the amended Special Act”).

In light of the details and contents of the amendment of the amended Private School Act and the Special Act on Relief, a private university teacher who is appointed as a university faculty member and whose term of appointment has expired due to a fair examination based on reasonable standards on his/her ability and qualities as a teacher shall be entitled to request a fair examination on whether he/she is reappointed with the expectation that he/she will be reappointed unless there are special circumstances. As long as there is a dispute as to whether a person who has the right to appoint and dismiss has an effect on his/her legal relationship of the university faculty members, a decision and notification to refuse the reappointment of a teacher of a private university whose term of appointment has expired may affect the decision of refusal of reappointment and the validity of the notification, and thus, the university faculty member has the interest in filing a lawsuit to seek confirmation on the refusal of reappointment and the validity of the notification through civil litigation, and this is also the same even if he/she was refused to be reappointed prior to the enforcement date of the Private School Act and undergone the review of the Special Committee regarding the same decision of refusal of reappointment in the administrative remedy procedure under the Special Act (see, e.g.

Upon examining the reasoning of the judgment below in light of the above legal principles, the court below is just in rejecting the defendant's defense of this case that the plaintiff did not have the interest in seeking confirmation of nullity of the decision to dismiss reappointment of this case. There is no error in the misapprehension of the provisions of the Constitution, the former Private School Act, the amended Private School Act, and the Special Act on Relief, or the legal principles as to the interest in confirmation, or any error in the misapprehension of the legal principles as to the interest in confirmation, or failure or inconsistency with the reasoning of the judgment. The Supreme Court precedents cited by the defendant as the ground of appeal on this part are related to the

(2) According to the amended Private School Act and the Special Act on Relief, a teacher of a private university who has been appointed by the term of appointment for university faculty and whose term of appointment has expired under a fair examination based on reasonable standards as to his/her ability and qualities shall have the right to demand fair examination based on reasonable standards as to whether he/she is reappointed, unless there are special circumstances. In cases where an appointment authority refuses to be reappointed for a teacher who has filed an application for reappointment, the appointment authority shall be granted the right to demand fair examination based on reasonable standards as to whether he/she is reappointed, barring special circumstances. There is no ground for refusing reappointment, i.e., falling short of the criteria for examination of reappointment, or even if such ground exists, it shall be deemed that a fair examination based on reasonable standards has been lacking and that it is reasonable in terms of social norms to deny the appointment of a teacher. However, it shall be deemed that the decision to refuse reappointment is null and void if such decision violates the principle of public interest as a faculty member or violates the principle of fair and reasonable evaluation of the relevant facts, and it shall be deemed that such decision has violated the principle of fair and equality.

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the defendant corporation's decision to dismiss the reappointment of this case was null and void on the ground that the defendant corporation did not follow procedures such as application for reappointment, provision of opportunity to state opinion, prior notice of the grounds for refusal of reappointment in making a decision to dismiss the reappointment, and that the defendant corporation's appointment of 32 of 39 full-time instructors who were not reappointed uniformly during the second semester of 1999 were appointed as part-time instructors of ○○ University, and appointment of 31 of 31 as full-time instructors during the second semester of 200, and appointment of 26 teachers serving as industrial enterprises in the second semester of 199 as a new full-time lecturer, on the ground that the decision to dismiss the reappointment of this case was justifiable or inevitable, on the ground that the defendant corporation did not review or review the factors to be considered at the time of reappointment under the articles of incorporation of the defendant corporation and the personnel management regulations of ○ University.

Upon examining the records in light of the above legal principles, the above measures of the court below are just, and there is no error in the misapprehension of the rules of evidence or the misapprehension of judgment as to the legitimacy of the decision to waive reappointment, as otherwise alleged in the ground of appeal

B. As to the claim for damages

(1) The legal doctrine on the establishment and scope of liability for damages (see, e.g., Supreme Court Decisions 2007Da42433, Jul. 29, 2010; 2007Da47841, Sept. 30, 2010)

(A) Requirements and scope of liability for damages of school juristic persons resulting from illegal refusal of reappointment

Even if a decision to refuse the reappointment of a school juristic person for a fixed-term university faculty member is procedural or substantial defect and its judicial effect is denied, it should be recognized that the refusal of reappointment was caused intentionally or negligently by the school juristic person in order to compensate for property damage to the school juristic person on account of constituting a tort. For this purpose, it should be determined based on whether the school juristic person has a substantial reason to assume liability for damages to the university by taking into account all the circumstances, such as the content and nature of the ground for refusal of reappointment, the degree of contribution of the relevant teacher in the examination procedure, the degree of the reason for refusal of reappointment, the existence or extent of the reason for refusal of reappointment, and the contents thereof, and the whole progress of the examination of reappointment, based on the consideration of the contents and nature of the ground for refusal of reappointment, the degree of contribution of the relevant teacher in the examination procedure, the existence or extent of the reason for refusal of reappointment, other than those specified,

Where tort of a school juristic person is recognized through such determination, a teacher of a private university who could have been reappointed if he/she had been duly reappointed may claim compensation for property equivalent to his/her wages for the period during which he/she could have been appointed as a teacher if he/she had not committed such illegal act. Such a period of time during which he/she could be employed shall be determined individually by comprehensively taking into account the following: (a) the degree of the overall strictness of the standards for examination for reappointment of the relevant university; (b) the difference between the major area of the relevant teacher and the actual status of reappointment (re-election rate); (c) the structure of organization of reappointment and promotion of the relevant university (whether the period of service is restricted; (d) the structure of examination of reappointment and promotion of the relevant university; and (e) the personal research capacity (the number of times or degree of transit of the relevant university previously reappointed; and (e) the criteria for recognition of qualification for reappointment in the relevant examination of reappointment). It shall not be limited to the amount equivalent to wages

Meanwhile, in order to claim consolation money on the ground that a private university teacher was suffering from a separate mental pain other than property damage as mentioned above 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 the relevant teacher in the university or college even though there is no reason to refuse reappointment, or if it objectively apparent that the fact on the ground of refusal of reappointment does not constitute grounds for examination of reappointment, such as personnel regulations, or cannot constitute grounds for refusal of reappointment, or is objectively apparent and paid attention, such circumstance can be easily identified, but it should be obvious that the abuse of discretion by the university on the examination of reappointment, such as refusal of reappointment, is not permissible in our sound social norms or social norms.

(B) Responsibility of a school juristic person after the decision of inconsistency with the Constitution was rendered in 2003

In 2003, the Constitutional Court rendered a ruling of inconsistency with the Constitution of the Republic of Korea on the grounds that the pre-examination procedure and ex post facto remedy procedure of the reappointment under the former Private School Act violate Article 31(6) of the Constitution, thereby rendering a ruling of inconsistency with the Constitution of the Republic of Korea on the grounds that the grounds for refusing the reappointment of a fixed-term university faculty member should also be prepared, and an opportunity or refusal of reappointment should be given prior to the revocation of reappointment, and an institutional device should be provided to dispute ex post facto if the reappointment is refused. Ultimately, in relation to the reappointment, it can be understood as a ruling based on the premise that the right to request a fair review based on reasonable standards is recognized, and as long as it is confirmed by a judicial institution that the right to request a review of reappointment exists, liability for damages should still be borne by the relevant university member whose decision of refusing reappointment is denied due to procedural or substantive reasons, unless the relevant university does not resume the review procedure without any special circumstances.

However, even if it is confirmed that there was a right to apply for review of reappointment against a teacher of a private university, as a result of a decision of inconsistency with the Constitution in 2003, it is not reasonable to promptly give a school juristic person any legal disadvantage on the ground of nonperformance of the duty to review as to the previous disposition of refusal of reappointment, and the liability of a school juristic person due to unlawful refusal of reappointment can be limited to only after the time when the relevant teacher is objectively confirmed as the applicant for review. Meanwhile, the relevant teacher’s request for review may be expressed by urging or requesting the examination of reappointment directly to the school juristic person, but it can be confirmed by filing a lawsuit seeking confirmation of invalidity of the decision of refusal of reappointment against the school juristic person

Furthermore, 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, as seen earlier, notwithstanding the fact that such an applicant for reappointment had been confirmed, the school juristic person’s intentional act or negligence must be recognized. However, 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 intentional act or negligence in relation to such refusal does not appear to have maintained it as it is. Thus, the school juristic person’s intention or negligence should be determined by comprehensively taking into account all the circumstances such as the contents and nature of grounds for refusal of reappointment in the past, the degree of contribution of the relevant school juristic person in the course of examination of reappointment, the relevant school juristic person’s explanation or degree in the procedure for examination of reappointment, the existence and content of the grounds for refusal of reappointment, and the whole progress of the examination of reappointment, other than the grounds for refusal of reappointment, in which the school juristic person has ordinarily taken into account the general university’s duty of objective duty of care. Moreover, in order to claim compensation

(2) The lower court’s determination on the establishment and scope of liability for damages

According to the reasoning of the judgment below, the court below held that the defendant corporation's failure to resume the procedure of reappointment of the plaintiff after the delivery of a copy of the complaint of this case seeking confirmation of invalidity of the decision to resign of the plaintiff's reappointment does not differ from maintaining that the decision to refuse reappointment of the plaintiff was justifiable, and that the decision to decline of reappointment of the plaintiff was made without undergoing a substantial examination of the requirements for reappointment of the previous time, and that the measure to dismiss the school or to suspend the recruitment of new students does not constitute a special reason to justify the refusal of reappointment of the existing teachers, and that the above measure taken by the defendant corporation was caused by intentional or negligent acts committed by the defendant corporation, and that there was no contribution by the plaintiff, taking into account all the circumstances such as the fact that the plaintiff satisfies the criteria of the personnel management regulations of ○○ University, and that the decision to decline of reappointment of the plaintiff was void by lack of objective duty of care in view of the normal university's standard and that the plaintiff was not liable for damages caused by the plaintiff's intentional or negligent omission of the complaint of this case.

Furthermore, with respect to the scope of property damage, the lower court rejected the Plaintiff’s claim that the Plaintiff’s property damage was equivalent to the amount of wages during the period during which the Plaintiff could have been appointed and held as a teacher through a lawful review of reappointment, and on the grounds stated in its reasoning, the Plaintiff could be reappointed once every two years, barring any special circumstances, since the Plaintiff expressed his/her intention to apply for reappointment on the grounds stated in its reasoning, and determined that the expected expiration date of the Plaintiff’s term of office should be the expected expiration date of the term of appointment that arrives after the Plaintiff’s major department is abolished, and that the amount of wages up to that time should be deducted from the benefits accrued to the Plaintiff during that period should be calculated as property damage.

In addition, the lower court determined that the Defendant corporation is liable to compensate the Plaintiff for consolation money on the ground of the circumstances in its holding, including the fact that, among 39 faculty members subject to the decision on the exclusion from reappointment of the instant case, the Plaintiff suffered emotional distress due to the refusal of reappointment of the Defendant corporation, on the grounds of the fact that most of the faculty members of the Plaintiff et al. were employed again to the Defendant corporation except for some of the faculty members of the Plaintiff et al., and that the decision on exclusion from reappointment of the instant case

(3) Determination on the grounds of appeal as to the establishment and scope of liability for damages

In light of the aforementioned legal principles and records, the above determination by the court below is just. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of the legal principles as to whether the decision to dismiss the reappointment of this case was unlawful, the defendant's intentional or negligent act, the existence of justifiable grounds for the waiver of reappointment of this case, the plaintiff's anticipated tenure of office, and the recognition of consolation money, etc., or in failing to seek an explanation on revenues to the plaintiff in relation to the deduction of benefits, or in violation of relevant Acts such as the Constitution and the former Private School Act and the

(4) Determination on the grounds of appeal as to extinctive prescription and good faith

According to the reasoning of the judgment below, the court below rejected the defendant's defense of extinctive prescription on the premise that the defendant corporation failed to comply with the procedures for review of reappointment, despite the fact that the defendant corporation did not comply with the procedures for review of reappointment after it was confirmed that the defendant corporation's illegal act, which served as the basis of the liability for damages in this case, was not the decision of decline of reappointment in this case but the right to request review of reappointment in private universities as a 2003 unconstitutionality decision of this case

In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the extinctive prescription or the good faith principle.

2. Plaintiff’s ground of appeal

In light of the relevant legal principles and records, the judgment of the court below is just to determine that the period of expiration of the plaintiff's term of office is the expected expiration date of the term of appointment, which arrives after the abolition of the department to which the plaintiff's major belongs, as seen earlier, and there is no error of law such as failing to properly examine the expected expiration date of

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)