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(영문) 서울중앙지법 2006. 7. 28. 선고 2005가합90792 판결

[손해배상(기)] 확정〈서울대 미대교수 사건〉[각공2006.10.10.(38),2065]

Main Issues

[1] The case holding that the rejection disposition against reappointment of faculty members of the National University constitutes an abuse of discretionary power and thus illegal

[2] Whether an administrative disposition is solely based on the fact that the administrative disposition was revoked in an appeal litigation and constitutes a tort due to a public official’s intentional or negligent act (negative), and in such a case, the requirements for establishing State liability and the criteria for determining the State

[3] The case holding that the State is liable to compensate for the amount equivalent to wages and consolation money which the State would have been able to normally work for the above teachers from the day after the date of refusal of reappointment on the ground that the refusal of reappointment against the faculty members of the National University lost objective legitimacy due to the public official

Summary of Judgment

[1] The case holding that the president of a National University's office's refusal of reappointment of a person subject to review in accordance with the resolution of the personnel committee for the head of a National University Headquarters without sufficiently considering such circumstances constitutes a deviation from and abuse of discretionary authority, although the method of selecting the person subject to review and the result of the examination was considerably inappropriate in terms of social norms in the course of research examination for reappointment, and the research performance submitted by the person subject to review satisfied the criteria for review

[2] Even if an administrative disposition is revoked after an appeal is filed, it cannot be determined that the pertinent administrative disposition is caused by a public official's intentional or negligent negligence and constitutes a tort by virtue of res judicata. It is reasonable to deem that the public official in charge of administrative disposition generally public official satisfies the requirements for State compensation liability under Article 2 of the State Compensation Act in a case where it is recognized that such administrative disposition has lost objective legitimacy by neglecting objective duty of care. In such a case, whether the administrative disposition has lost objective legitimacy should be determined by taking into account all the circumstances such as the type and nature of gains of infringement, the form and cause of administrative disposition infringing on, the victim's involvement in the exercise of the administrative disposition, the degree of damages, and the degree of damages.

[3] The case holding that the State is liable to compensate for the amount equivalent to wages and consolation money which the State would have been able to normally work for the above teachers from the day after the date of refusal of reappointment on the ground that the refusal of reappointment against the faculty members of the National University lost objective legitimacy due to the public official'

[Reference Provisions]

[1] Article 27 of the Administrative Litigation Act, Article 11 (3) of the former Public Educational Officials Act (amended by Act No. 5717, Jan. 29, 199; see Article 11-3); Article 5-2 (2) of the former Public Educational Officials Appointment Decree (amended by Presidential Decree No. 17470, Dec. 31, 2001); / [2] Article 2 of the State Compensation Act; Articles 29 and 30 of the Administrative Litigation Act / [3] Article 2 of the State Compensation Act; Article 11 (3) of the former Public Educational Officials Act (amended by Act No. 5717, Jan. 29, 199; see Article 11-3); Article 5-2 (1) (c) of the former Public Educational Officials Appointment Decree (amended by Presidential Decree No. 17470, Dec. 31, 2001); Article 5-2 (1) (c) of the current Public Educational Officials Act) / [2]

Reference Cases

[2] Supreme Court Decision 99Da70600 delivered on May 12, 200 (Gong2000Ha, 1403) Supreme Court Decision 2000Da12679 delivered on December 14, 2001 (Gong2002Sang, 276) Supreme Court Decision 2001Da33789, 33796, 33802, 33819 delivered on November 27, 2003 (Gong2004Sang, 8) Supreme Court Decision 2001Da65236 delivered on December 111, 2003 (Gong204Sang, 98)

Plaintiff

Kim Jong-soo (Attorney Kim Chang-soo, Counsel for defendant-appellant)

Defendant

Republic of Korea (Law Firm Rate, Attorneys O Jong-hwan et al., Counsel for defendant-appellant)

Conclusion of Pleadings

June 30, 2006

Text

1. The defendant shall pay to the plaintiff 371,274,910 won and 50,000 won among them, 10,855,600 won from Sep. 1, 1998; 34,33,000 won from Jan. 1, 200; 37,859,050 won from Jan. 1, 2001; 44,562,370 won from Jan. 1, 2002; 52,013,90 won from the following day to 52,00 won; 60,492,600 won from Jan. 1, 2003 to 60,492, 60,600 won from May 1, 2005 to 37, 2008; and 16,50% from June 26, 2005 to 37, 2005.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

With respect to the Plaintiff KRW 828,559,910 and KRW 500,00 among them, the Defendant shall pay to the Plaintiff KRW 12,00,60 from September 1, 1998; from January 1, 1999; from January 1, 2000 to KRW 35,061,00; from January 38, 702,050, from January 1, 2001 to KRW 45,769,370 from January 1, 200; from January 5, 2002 to KRW 52,83,90 from the date following the date of request; from January 1, 2003 to KRW 61,392,600 from the date of request to the date of payment; from KRW 38,702,370 from the date of request to the date of payment; and from KRW 50% from the date following the date of request to the date of request to the Plaintiff.

Reasons

1. Basic facts

A. The Plaintiff graduated from the applied art department and the same graduate school of the Seoul National University, and obtained a doctorate from the New York graduate school of the United States on May 191, 191, and was appointed as an assistant professor of the Seoul National University for a period of four years as of September 1, 1994.

B. On March 31, 1998, the Seoul National University Headquarters Personnel Committee (hereinafter “the Seoul National University Headquarters Personnel Committee”) decided to exclude the Plaintiff from the scope of re-employment on the grounds that the Plaintiff’s research performance falls short of the criteria for review of re-employment as a result of the deliberation by the Seoul National University Personnel Committee (hereinafter “the Seoul National University Personnel Committee”)’s decision on March 31, 1998, and the president of the Seoul National University notified the Plaintiff of the refusal disposition (hereinafter “the refusal disposition of re-employment”) to the effect that the Plaintiff’s appointment period expires as of August 31, 1998.

C. On January 9, 199, the Plaintiff filed an administrative litigation against the president of the Seoul National University seeking the revocation of the disposition of refusal to re-election of this case. The first instance court (Seoul Administrative Court Decision 99Nu683) rendered a favorable judgment against the Plaintiff, but the second instance court (Seoul High Court Decision 2000Nu1708) rejected the lawsuit on the grounds that the notice issued by the president of the Seoul National University cannot be deemed an administrative disposition subject to administrative litigation, and the second instance court (Seoul High Court Decision 200Nu7735) did not dismiss the lawsuit on the grounds that the decision to exclude the Plaintiff from re-election and the expiration of the term of appointment was not the administrative disposition subject to administrative litigation. The Supreme Court (Supreme Court Decision 200Du7735) modified the previous Supreme Court decision and reversed and remanded the above High Court decision on January 28, 2005 (Seoul High Court Decision 204Nu11086). Accordingly, the Seoul High Court reversed judgment on January 28, 2005.

D. The Plaintiff was reappointed on March 3, 2005 between the Plaintiff and the Seoul National University (the president) as an assistant professor of the Art College of the Seoul National University on February 25, 2005, in accordance with the understanding drawn up on February 25, 2005, and is serving as an associate professor from April 1, 2005.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 4, Gap evidence 5-31, Gap evidence 6-41, and the purport of the whole pleadings

2. Occurrence of liability for damages;

A. The parties' assertion

(1) The plaintiff's assertion

The plaintiff's member of the U.S. Personnel Committee, the headquarters personnel committee, and the president of the Seoul University refused to be reappointed to the plaintiff either intentionally or by negligence in performing his/her duties to deliberate and decide on whether to be reappointed to the plaintiff. Thus, this shall be deemed to have satisfied the requirements for State liability under Article 2 of the State Compensation Act, and the defendant asserts that he/she has a duty to compensate for the loss

(2) The defendant's assertion

In this regard, the defendant decided that the U.S. Personnel Committee's selection as an examiner was unfair in examining the research performance of the plaintiff's submission, there is no evidence to acknowledge that the review content of the examiners was non-academic and unreasonable, and that the review content was fair through three reviews, and that the plaintiff was recommended to be reappointed even though it failed to meet the criteria for review of reappointment as a result of the evaluation of research performance. In the absence of any provision to determine whether the evaluation of research performance was performed on several occasions, the personnel committee of the headquarters did not have any provision to determine whether the research performance was met on three occasions or more, and refused re-employment. The president of the Seoul National University merely refused re-employment in accordance with the practice following the resolution of the personnel committee of the headquarters. Accordingly, in light of the circumstances of the rejection disposition in this case, the defendant's non-permanent personnel committee member who is a public official for recognition of national liability, the member of the personnel committee of the headquarters of the Seoul National University, the president of the Seoul National University, and the plaintiff's obligation of care cannot be acknowledged.

(b) Markets:

(1) Facts of recognition

(A) Criteria for examination of reappointment and reappointment of university faculty members

1) Article 11(3) of the former Public Educational Officials Act (amended by Act No. 5717, Jan. 29, 199; hereinafter “former Public Educational Officials Act”) provides that “A faculty member working for a university or college may be appointed for a fixed period as prescribed by the Presidential Decree.” Accordingly, Article 5-2(2) of the former Public Educational Officials Appointment Decree (amended by the Presidential Decree No. 17470, Dec. 31, 2001; hereinafter “former Public Educational Officials Appointment Decree”) stipulates that “In the case of an assistant professor working for a national or a public university or a public university, an appointment shall be made for a fixed period of not more than four years.”

2) On the other hand, the method of examining the reappointment of the faculty of a national or public university is stipulated as "the person to be reappointed shall be strictly examined and reappointed on the basis of the general or principal of each individual, under the responsibility of the president of each university." With respect to the scope, criteria for recognition, and conversion rate of research results, the examination of research results shall be determined by the school regulations or regulations of each university. In principle, with respect to the examination of the research results, "at least three persons in the relevant major field shall be examined, but at least one of them shall be commissioned as a person subject to examination, and the evaluation of research results shall be at least average," and the evaluation of research results shall be at least 20% in the case of new appointment, and at least 20% in the case of new appointment, it shall be submitted within the latest four years, and at least 200% within the period of promotion, in the case of appointment, not separately prescribed.

3) Article 10 subparag. 1 of the Seoul National University Regulations provides that “The term of appointment of a full-time professor and a full-time teaching assistant shall be fixed to be appointed with a four-year term of appointment.” Article 11 of the said Regulations provides that “The full-time teaching faculty whose term of appointment expires shall be reappointed after undergoing separate review.” Article 13 of the said Regulations provides that “The standards for the examination of the reappointment of a full-time teaching faculty include three examiners to examine research performance, academic activities in the field of research and expertise, academic activities in the field of study, students’ ability and performance in life guidance, compliance with the education-related Acts and subordinate statutes, and maintain dignity as a full-time teaching faculty.” Article 14 of the said Regulations provides that “The head of each university (original) shall appoint three examiners to examine research performance for re-election, two examiners, and one extra-school personnel, and if the number of domestic faculty personnel is less than two, it may be replaced by extra-school personnel.” Article 14-2 provides that one of the full-time teaching faculty member shall be recognized to 10%.

4) The criteria for preparing a review report prepared to specify the review criteria by the Seoul National University are subdivided into six areas: “The basic quality as a professor, academic research ability and performance, teaching ability and performance, student guidance ability and performance, contribution to the nation and society, work status,” and among them, assistant professors subject to reappointment shall submit research records of at least 200% within three years, and research records shall be “at least”, respectively.

(B) Process of review for reappointment of the plaintiff

1) On June 7, 1998, the U.S. Personnel Committee submitted the Plaintiff’s “Research List for Re-Appointment” and its research performance on which Part 3 of the research performance is indicated by the Plaintiff, and had the Plaintiff designate two of them, and requested three examiners to examine the Plaintiff’s low number of design exploration (the 21st century design cultural exploration) and one of the thesis (the title of Korean Design Education in the 21st century), designated by the Plaintiff. As a result of the review by the examiners, the term “the 21st century design cultural exploration” was deemed to be short of the average number of design education in the 21st century.

2) On July 6, 1998, the Committee for Personnel of the United States decided to request the review of the Plaintiff’s research performance and submitted the list of research performance priorities and its research performance (including three parts that were submitted earlier) in which the Plaintiff’s order of research performance was indicated on July 6, 1998, and 2 and 4 of this paper (with the exception of author and thesis Nos. 1, 3, which were subject to the first review from the perspective of visual arts, referring to the Si’s revolution, key character and cultural symbol interpretation displayed on the advertisement image). As a result of the second examination, the head of the university confirmed that “the city’s revolution from the perspective of time arts” was average “the head of the university’s revolution” as “the head of the university’s rank, U.S., and the head of the university falls short of 97, 198, and excluded the Plaintiff’s research performance evaluation standard from his appointment.”

3) However, at a meeting held on August 24, 1998, the personnel committee of the headquarters has an opinion of various organizations and individuals that affected the recommendation for reappointment of some members of the committee on the recommendation of reappointment. Accordingly, it is desirable to conduct a review in order to ensure objectivity and fairness in research performance review process, etc. relating to the Plaintiff’s reappointment.” Upon presenting an opinion, the committee decided to request a review to the U.S. personnel committee in relation to the Plaintiff’s reappointment. Accordingly, the president of the Seoul National University requested a review on the proposal for exclusion from reappointment of the Plaintiff on August 25, 1998.

4) The U.S. personnel committee, upon the request of the above review, re-designated the Plaintiff and Part I of the thesis (as a result of the third examiner’s evaluation report on August 28, 1998, “the Plaintiff’s research performance fell short of the criteria for re-employment,” the same was the same as the subject of the first examination.) had new examiners, not the existing examiners, examine it. As a result of the examination, “the cultural exploration of the 21st century” was at least an average of e.g., friendship, and number. However, the term “the 21st century design education” was evaluated as falling short of the criteria for re-employment. However, at an open meeting on August 28, 1998, the U.S. personnel committee confirmed the fact that “the Plaintiff’s research performance falls short of the criteria for re-employment,” while considering the Plaintiff’s past research performance and academic activities in the specialized field, and decided to recommend the Plaintiff as a member of the U.S. to recommend the Plaintiff’s vote to five members through recommendation.

5) On August 31, 1998, the headquarters personnel committee of the Republic of Korea, which was held on August 31, 1998, confirmed that the Plaintiff failed to meet the criteria for review of reappointment in the third examination, and subsequently decided that the Plaintiff is subject to reappointment, which violates the provisions relating to reappointment, and thus violates the provisions relating to reappointment. As long as the criteria for review of reappointment should be complied with, the headquarters personnel committee does not have the authority to make a resolution against the provisions relating to reappointment.” Accordingly, the president of the Seoul Central District Court notified the Plaintiff of the refusal disposition of reappointment that the term of appointment expires on the same day.

(C) Evaluation, etc. of the Plaintiff’s work

1) “Design exploration in the 21st century”, which is the author’s book submitted to the Plaintiff’s research performance review, is a work awarded a design award in the 1997th century selected by the Plaintiff’s design. “In this respect, from a visual arts perspective, the revolution in the city” was recognized by scholars in many relevant fields in Korea, and was also published in spring 200 in the world’s world academic journal in the field of visual design.

2) Meanwhile, according to the data of the Ministry of Education, professors excluded from the reappointment at the Seoul University from the date of implementation of the university faculty reappointment system in 1976 to the date of 198 are only 1 Plaintiff, and the reason for exclusion from reappointment by the Plaintiff reported to the Ministry of Education falls short of research performance. In addition, the fact that the Plaintiff was excluded from reappointment and the reason for refusal to reappointment by the Plaintiff falls short of research performance in relation

[Basis] Evidence Nos. 2, evidence Nos. 5-7 through 13, 22, 30, 32, 33 through 45, 48 through 59, 61, 67, 72, evidence Nos. 6-5 through 22, 48, 49, and the purport of the whole pleadings

(2) Determination:

(A) Illegality of the disposition rejecting re-election of this case

1) In the case of the instant refusal disposition, it has been recognized as not meeting the criteria for review on the ground that all two parts of the results of the review were not above the average “as a result of the review,” since the first, second, and third instances of the instant refusal disposition were to designate the Plaintiff at 1, second, and third instances of the review, and that the examination did not meet the criteria for review on the ground that the order of priority of research performance was not higher than the average “as a result of the examination.” However, even if there is feasibility that the examination subject should determine the order of priority of research performance, the examination on these research performance basically is not of the nature that can be derived from the one’s own result by natural scientific method, and the examination on these research performance is not of the nature that can be derived from the one’s own result, and it is reasonable to select the subject of review, as in the instant case of the Plaintiff, it is reasonable to determine that the two separate criteria for review should be met at least 20% of the pre-examination without notifying each of the results of the examination at 20% of the examination.

From this point of view, it is reasonable to view that, as seen above, the plaintiff in this case requires the plaintiff to newly designate two parts at each time of examination, and that the evaluation of the selection method and the result of examination conducted by the U.S. personnel committee, such as determining the failure to meet the criteria in the same opportunity of examination, has considerably lost the validity by social norms.

2) Furthermore, in light of the contents of the regulations on the reappointment at the time of review and the fact that there are no special circumstances to give correlations among the research performance subject to examination of the same opportunity among the research performance subject to examination of the same opportunity, in relation to the examination of the research performance, if the overall research performance exceeds the average of 200%, it shall be deemed that the standard of examination is met, and otherwise, it shall not be deemed that the research performance subject to 200% or more at the same time of examination must satisfy the average of “the average” level respectively. Thus, in the case of

3) Therefore, it appears that the Plaintiff erred in the method of selecting the subject of examination in relation to the examination of the Plaintiff’s research performance, and furthermore, even if the evaluation of the result of the examination could be deemed that the Plaintiff passed the examination criteria, the president of the Seoul National University, who has the authority to appoint the Plaintiff, would not re-appointed the Plaintiff according to the resolution of the headquarters personnel committee, without sufficiently considering such circumstances, lose the validity of social norms. Accordingly, the instant refusal disposition is deemed unlawful because it deviates from or abused the scope of discretionary authority.

(B) Whether the rejection disposition of the instant case is to the extent that it loses objective legitimacy due to the violation of objective duty of care

1) Even if a certain administrative disposition has been cancelled in an appeal litigation after the judgment of res judicata, it cannot be determined that the pertinent administrative disposition was directly caused by public official's intentional or negligent act and constitutes a tort. In light of the public official's standard, it is reasonable to deem that the public official in charge of such administrative disposition satisfied the requirements for State compensation liability under Article 2 of the State Compensation Act in a case where it is recognized that the administrative disposition has lost objective legitimacy by neglecting objective duty of care. In this case, whether the administrative disposition has lost objective legitimacy should be determined by taking into account all the circumstances such as the type and nature of gains of infringement, the form and cause of the administrative disposition infringing, the victim's involvement in the exercise of the administrative disposition, the degree of damages, and the degree of damages (see Supreme Court Decisions 200Da12679, Dec. 14, 2001; 201Da6236, Dec. 11, 2003).

2) In light of the above legal principles, we examine whether the above disposition has lost objective legitimacy due to the breach of duty of public officials performing their duties' duty of care in the instant refusal disposition of re-election.

A) As to “the type and nature of benefit from infringement and the degree of damage”

In full view of the above facts, the reappointment system for university faculty members recognized by the former Public Educational Officials Act and the former Public Educational Officials Appointment Decree is a social system with the purpose of supplementing the abolition of the retirement age system by allowing them to re-examine their qualities and abilities when the term of appointment expires. Therefore, legal interests infringed by an administrative disposition regarding the determination of whether to be reappointed can be included in part of social or public interests. Meanwhile, the pertinent faculty members who lose their status as university faculty members due to the disposition of refusal of reappointment are directly and specifically infringed upon the freedom of learning protected by Article 22(1) of the Constitution. As the labor relations as faculty members were terminated, they are deprived of the opportunity to receive remuneration to secure their survival as consideration for their academic activities and teaching activities (wages). Furthermore, the Constitution of the Republic of Korea (Article 31(4) and (6) of the Constitution) on autonomy of university and the principle of legal status as faculty members, which violates the legal interests of the Plaintiff’s Republic of Korea, and the Plaintiff’s refusal disposition is also an infringement of the legal interests of the Plaintiff’s reputation and quality of the Seoul University.

B) As to “the form of an administrative disposition that constitutes an act of infringement and its cause”

① First of all, since the examination of research performance is not of the nature which can be derived from the result of a natural scientific method, the examiner's own subjective point of view should be reflected in a considerable part of his own point of view even though he dances, and the conclusion can be divided in various ways, it is recognized that the plaintiff should designate two new parts at each time of the examination, and that the evaluation of the selection method of examination and the result of examination by the U.S. personnel committee, such as determining the same opportunity to meet the criteria of examination, has considerably lost validity in social norms. Accordingly, the U.S. personnel committee that established such criteria of examination and the headquarters that decided to reject the appointment of the plaintiff according to the results of the examination, are in violation of the duty of objective duty of care in performing the duties of review and resolution.

② Furthermore, the purpose of the reappointment system for university faculty members is to supplement the abolition of the retirement age system by allowing the faculty members to re-examine their qualities and abilities at the expiration of the term of appointment. Of the record of examination set up by the Seoul National University to specify the standard of examination, the assistant professor subject to reappointment shall submit research records of at least 200% within 3 years, and research records shall be at least 1%, respectively. In full view of the above purport and recognized facts, the Seoul National University shall establish the reappointment system for assistant professors and verify their qualities and capabilities as assistant professors; at least 20% of research records in quality; at least 20% of research records shall be required to be "at least" in quality; and at least 20% of research records shall be required to retire from the position of university faculty members; and at least 20% of research records shall be required to be "at least 20% of research records" in light of the aforementioned purport of the examination system which provides that at least 20% of research records and capabilities shall not be included in the standard of examination.

Therefore, according to the provisions on the criteria for examination of reappointment of the Seoul National University, in selecting and evaluating research records for the examination of reappointment, at least 200 percent of research records during the examination period of teachers shall be examined. In this regard, even if there is no possibility of diverse interpretation on the regulations on the evaluation of research records among the criteria for examination of reappointment, if the U.S. Personnel Committee and the Headquarters Personnel Committee have designated the plaintiff's 2 research records while examining the plaintiff's research records, and each of them is not "average" or "as a result of the examination," without entirely examining whether all of them are "the research records of 200% including the remaining research records" or "the results of the examination," and the decision to exclude the reappointment shall be made without examining whether they are "the results of the examination" or "the methods of selection subject to examination and the results of examination," and in this respect, the U.S. Personnel Committee and the Headquarters of the Personnel Committee neglected to perform objective duty of care in the application of the regulations on the examination of reappointment.

(3) In addition, in light of the criteria for examination of reappointment that can be interpreted as above, insofar as the Seoul National University provided the Plaintiff with an opportunity of up to three times with regard to the examination of research performance, and as a result, it is found that the entire research performance of 200% is equal to or higher than the average of the research performance per unit, the examination criteria under the provisions for examination of reappointment should be deemed to have been satisfied. However, the head office personnel committee should be excluded from reappointment on the ground that the criteria for examination of reappointment under the relevant provisions related to reappointment should be observed.

④ In addition, it is recognized that there was negligence by the personnel committee for the U.S. personnel committee and the headquarters's failure to perform an objective duty of care in the evaluation of the method of selection of the subject of review and the result of examination, and furthermore, there was negligence that the research results submitted by the Plaintiff were not judged to have passed the criteria for review of reappointment. Thus, it is deemed that the president of the Seoul National University did not re-appoint the Plaintiff according to the resolution of the personnel committee for the headquarters, which lacks objective duty of care to be paid for the selection of the subject of review, and thus

C) With respect to “the existence and degree of the victim’s involvement in the issuance of administrative action”

Comprehensively taking account of the aforementioned facts, the instant disposition of refusal to re-election was taken following erroneous evaluation of the purpose of the re-election system of university faculty members and the criteria for review of re-election, the U.S. Personnel Committee, the headquarters personnel committee, and the president of the Seoul National University based on the lack of understanding of the aforementioned three cases. Therefore, the Plaintiff, the victim, did not participate in the issuance of

D) Other circumstances

1) As a teacher of a private school, the term of appointment of which has expired after being appointed as a fixed-term teacher, has the right to request a fair review on his/her ability and qualities based on reasonable standards as prescribed by the above Act, barring any special circumstances, if he/she satisfies the standards, to be reappointed with an expectation that he/she will be reappointed, barring special circumstances. Thus, in cases where a teacher of a private school, who could have been reappointed if he/she had undergone a lawful review on reappointment in accordance with the criteria for review on reappointment prescribed by the current Private School Act, is unlawfully rejected, he/she may seek compensation for damages equivalent to wages on the ground that such decision to refuse reappointment constitutes a tort (see Supreme Court Decision 2003Da262, Mar. 9, 206, etc.). Accordingly, in cases where a teacher of a national university seeks State compensation on the grounds of illegality of the disposition to refuse reappointment, beyond the scope of the concept of negligence for recognizing liability for damages based on tort under the Civil Act, it shall also be considered that such administrative disposition is excessively strict in addition to the damages claim through the national university.

2) In addition, while confirming the fact that the U.S. personnel committee "the result of the third examiner's report on evaluation shows that the plaintiff's research performance falls short of the criteria for review of reappointment," the committee decided to recommend reappointment by taking into account the plaintiff's past research performance and academic activities in the professional field and considering the possibility of future academic performance, etc., the fact that the decision was made by the 7 members of the committee that "the recommendation for reappointment of the plaintiff" is recognized as above. In light of these circumstances, the U.S. personnel committee shall be reappointed regardless of the outcome of research research and academic activities in consideration of the plaintiff's research performance and academic activities in the professional field. In determining the objective legitimacy of the rejection disposition of reappointment of this case, such decision by the U.S. personnel

E) Sub-decisions

In full view of the circumstances above, it is reasonable to view that the disposition of refusal of re-election of this case is a case where the public official in charge of such administrative disposition (the members of the U.S. Personnel Committee, the headquarters personnel committee members, and the president of the Seoul University) is a case where the administrative disposition is deemed to have lost objective legitimacy by exercising objective duty of care, and there is a substantial reason to assume the State responsible for compensating for damages

(C) Sub-decisions

Therefore, the rejection disposition of this case is judged to be an unlawful act committed by the members of the U.S. Personnel Committee, the headquarters personnel committee, and the president of the Seoul National University in violation of the objective duty of care in performing their duties related to the reappointment of the plaintiff. Thus, the requirements for State liability under Article 2 of the State Compensation Act

3. Scope of liability for damages

(a) Property damage;

(1) As long as the disposition of refusal to re-election of this case constitutes an official tort, the defendant is obligated to compensate for damages equivalent to the amount of wages that the plaintiff would normally have worked on the day after the date of refusal to re-election, unless the plaintiff is unlawfully dismissed.

(2) Furthermore, according to the results of fact-finding on the specific amount of damages equivalent to wages, the amount equivalent to wages that the Plaintiff, who was an assistant professor, was not paid from September 1, 1998 to December 31, 1998, as the Plaintiff refused to be reappointed, shall be 10,85,600 won, 34,33,000 won in year 1999, 37,859,050 won in year 200, 44,562,370 won in year 202, 52,90 won in year 200, and 60,492,600 won in year 203, 68,493,320 won in year 204, and 60,493,320 won in case of the Plaintiff’s refusal to be reappointed, and the amount equivalent to the Plaintiff’s wages that the Plaintiff had not received from the Seoul University as an associate professor during the period of 1, 2005.1, 205.1.

(b) consolation money;

In light of all the circumstances such as the relationship between the plaintiff and the defendant, the reasons leading up to the refusal disposition of re-election, the circumstances leading up to the refusal disposition of re-election, the disadvantage of property and status of the plaintiff, and the degree of defamation that the plaintiff suffered within the university society due to the refusal of re-election on the ground of the lack of research performance despite the fact that the plaintiff was not reappointed for more than six years and six months after the refusal of re-election, it is reasonable to determine consolation money to be paid to the plaintiff as KRW 50,000.

C. Sub-committee

Therefore, pursuant to Article 2 of the State Compensation Act, the defendant is liable for damages equivalent to 371,274,910 won (=10,85,600 won + 37,859,050 won + 44,562,370 won + 52,00 won + 60,000 won + 60,000 won + 68,493,492,600 won + 68,493,320 won + 12,60 won + 12,65,000 won for damages arising from 20.2.4 billion won for damages arising from 20.5 billion won for damages arising from 20.3 billion won for damages arising from 20,000 won for damages from 20.5 billion won for damages from 20,000 won for damages from 20.5 billion won for damages from 19,000 won for damages from 205.9

4. Conclusion

Thus, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit.

Judges Lee Soo-hee (Presiding Judge)

본문참조조문