[1] In a case where a private school teacher who was appointed as a fixed-term teacher under the former Private School Act and whose term of office expires due to an appointment as a fixed-term teacher, was able to be reappointed if he/she had undergone a lawful examination for reappointment in accordance with the criteria for a reasonable examination for reappointment, whether the decision to reject the appointment is unlawful and thus, is entitled to claim compensation for damages

[2] The starting point of the statute of limitations in a case where losses are continuously incurred as a result of continuous commission of a tort

[3] The case holding that the extinctive prescription has expired since a lawsuit seeking compensation for damages equivalent to lost wages and retirement allowances and consolation money that occurred due to the disposition of rejection of reappointment was filed at the expiration of 3 years from the date of notification of the disposition of rejection, as well as the date of

[4] The meaning of "it is impossible to exercise rights" where the extinctive prescription is not in progress

[5] The case holding that it is difficult to view that there was no provision for reappointment in the former Private School Act at the time of the rejection disposition of reappointment, and that the Supreme Court's precedent also denied the interests of the person who has the right to appoint and dismiss the fixed-term teacher's re-election as an act of free discretion in civil procedure, and thus, it is difficult to regard

[1] Unlike the current Private School Act, the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997) does not provide for the reappointment of a fixed-term teacher. However, if a private university teacher who was appointed as a fixed-term teacher and whose term of appointment has expired after undergoing a fair review based on reasonable standards on his/her ability and qualities, barring special circumstances, has the right to apply for a fair review on whether he/she is reappointed based on reasonable standards, barring special circumstances. Thus, inasmuch as a private school teacher whose term of office has expired under the former Private School Act has the right to undergo a fair review on his/her reappointment based on reasonable standards and legitimate evaluation, if he/she was illegally refused to be reappointed, he/she may seek compensation for damages equivalent to wages on the ground that such decision to refuse reappointment constitutes tort.

[2] Article 766(1) of the Civil Code, which is the starting point of starting the short-term extinctive prescription of a claim for damages by a tort, means not only the time when the injured party actually becomes aware of the occurrence of the damage and the perpetrator, but also when the harmful act becomes aware of the fact that the injured party can claim damages as a tort. In case where the damages are continuously incurred as a result of continuous tort, unless there are special circumstances, the damages are the new damages arising from the tort and the extinctive prescription is run separately from the time when the injured party becomes aware of the damages in applying Article 766(1) of the Civil Code.

[3] The case holding that in case where a private school foundation is appointed as a fixed-term teacher and the term of office of which expires and a state of non-compliance with the lawful procedures for re-election continues to exist and the damages arising therefrom continue to exist, the extinctive prescription for each damages arising from a new tort shall be completed for each time on the date of the new tort. However, the damages arising from the rejection disposition and the damages corresponding to the lost wages and retirement allowances and consolation money, as well as the damages arising from the rejection disposition, are filed more than three years after the date of the notification of the rejection disposition, and that the damages claim has expired since the above teachers filed more than three years after the date

[4] The statute of limitations proceeds from the time when a right becomes objectively created and is able to exercise the right, and does not proceed during the period during which the right is unable to be exercised. Here, “non-exercise of the right” refers to a case where there is a disability in the exercise of the right, for instance, the passage of the period or the non-performance of the terms and conditions, etc., and even if not knowing the existence of the right or the possibility of exercising the right, such cause does not constitute legal

[5] The case holding that it is difficult to view that there was no provision for reappointment in the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997) at the time of the rejection disposition of reappointment, and that the Supreme Court's precedent also denied the interests of a suit in civil litigation because it is deemed that the appointment disposition of a fixed-term teacher for whom the term of appointment expires is a discretionary act of the person who is entitled to appoint and dismiss, and thus

[1] Article 53-2 (3) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997) (see current Article 53-2 (3), (4), (5), (6), (7), and (8)); Article 750 of the Civil Act / [2] Article 766 (1) of the Civil Act / [3] Article 766 (1) of the Civil Act / [4] Article 166 (1) of the Civil Act / [5] Article 166 (1) of the Civil Act

[1] Supreme Court en banc Decision 200Du7735 Decided April 22, 2004 (Gong2004Sang, 905) Supreme Court Decision 2003Da262 Decided March 9, 2006 (Gong2006Sang, 565) / [2] Supreme Court Decision 98Da30285 Decided March 23, 199 (Gong199Sang, 728) / [4] Supreme Court Decision 2003Du10763 Decided April 27, 2004 (Gong204Sang, 916), Supreme Court Decision 2005Da3113 decided April 28, 2005 (Gong2005Sang, 803Sang, 803Sang, 2007Da536165 decided May 36, 2007)

Plaintiff (Attorney Park Sung-ho et al., Counsel for the plaintiff-appellant)

Defendant School Foundation (Law Firm Samduk, Attorneys Cho Jong-sung et al., Counsel for defendant-appellant)

December 7, 2007

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 20 million won with 5% interest per annum from July 4, 1995 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

1. Facts of recognition;

A. The Plaintiff’s appointment of professors and the occurrence of the school subcommittee situation

(1) On February 1, 1982, the Plaintiff was newly appointed as a professor at (title omitted) university medical division and professor operated by the Defendant’s private teaching institute and served until January 31, 1992.

(2) At around March 191, the Defendant unilaterally appointed Nonparty 1 to the head of the above university’s medical department without disregarding the intention of the university’s faculty. (Name omitted) The Defendant’s personnel administration was in a democratic manner and was punished for an assembly to withdraw appointment. On May 31, 191, the Defendant accepted Nonparty 1’s resignation from the above university’s first medical department, and appointed Nonparty 2 as the head of the Defendant under the control of the Defendant (title omitted), who was charged with non-permanent admission of the medical department, and the Defendant did not actively oppose Nonparty 2’s appointment of the president of the medical department. (Name omitted) The Defendant failed to present the name of the Plaintiff’s medical department’s 160 medical department’s 160 medical department’s major, and the Defendant did not request the Plaintiff to refuse to attend the research department’s name, including the name of the Plaintiff’s second medical clinic and the name of the Plaintiff’s 9 medical department’s 19 medical department name. (Name omitted) The Defendant failed to present the aforementioned resolution.

B. Defendant’s refusal to re-appoint the Plaintiff

(1) On February 28, 1992, the defendant opened a regular board of directors and examined the case of application for reappointment by 13 professors of the medical department of college (title omitted), and agreed to re-appoint the remaining 12 professors except the plaintiff, and notified the plaintiff of the fact on March 4, 199. The defendant notified the plaintiff of the fact on March 4, 199. The grounds for rejection of re-election by the defendant are as follows.

(A) The Plaintiff attended the deliberation council, which is a voluntary organization, as a professor’s status, and discussed complaints about the operation of the board of directors and administrative handling, and caused (title omitted) the atmosphere of the medical center.

(B) From July 1991 to July 31, 1991, the patient's refusal to treat and causing severe financial loss, thereby causing enormous impediment to the operation of the medical center (title omitted) and suffering to the patient.

(C) Around December 1991, each document was signed and sealed to reflect the last day of December 1991, and a request was made to withdraw the resignation submitted, but there was no change in the attitude.

(D) During the period of refusal of patient treatment, another professor who faithfully provides medical treatment was forced to participate in the refusal of medical treatment and interfere with medical treatment.

(2) However, at the time of the (title omitted), the Plaintiff did not have the position of the president of the faculty council or the emergency response committee at the time of the (name omitted) incident, urged other professors to resolve the situation, and did not have been present at the time of the occurrence of the situation, and did not instigate other professors. ② The Plaintiff did not refuse to attend the school twice on October 21, 1991, in addition to the one-day leave leave payment, and there was only the fact that the Plaintiff refused to attend the school twice on October 28, 1991, and did not refuse to attend the school for three months or medical treatment. In addition, the Plaintiff did not refuse to attend the school for three months or medical treatment. The Plaintiff had already been hospitalized at the time of the training and the one-time attendance refusal by the major. ③ Even though the Defendant’s personnel administration problem was the cause of the (title omitted) situation, demanding the Plaintiff to sign each Plaintiff on the contents that the Plaintiff is responsible for the refusal to attend the school against other professors.

C. Progress of the Plaintiff’s appeal for reappointment

(1) On February 29, 192, the Plaintiff filed a request for review with the Teachers Disciplinary Review Committee of the Ministry of Education for the rejection of reappointment of this case, and the said Committee rejected the Plaintiff’s request for review in accordance with the purport of the Supreme Court precedents at the time of denial of the decision to reject reappointment, without any provision regarding the procedure for re-election of fixed-term teachers under the former Private School Act (amended by Act No. 5274, Jan. 13, 1997; hereinafter the same) which is the Act on the Appointment and Dismissal of Private School Teachers.

(2) On the other hand, on February 27, 2003, the Constitutional Court prescribed the fixed-term appointment system under Article 53-2 (3) of the former Private School Act and decided to render a ruling of inconsistency with the Constitution (2000HunBa26) as to the above provision on the ground that there is no institutional device to dispute if the reappointment is refused, and pursuant to the above decision, the Private School Act was amended (Act No. 7352 of Jan. 27, 2005) and the provisions on the procedure for the reappointment of teachers (Article 53-2 (4) through (8) were newly established, including the procedure for deliberation on reappointment and the procedure for protesting against the rejection of reappointment (Article 53-2 of the above Act). Prior to the enforcement of the above amendment, the Special Act was enacted on July 13, 2005 to grant the university faculty members unfairly excluded from reappointment an opportunity to review their reappointment.

(3) On April 7, 2006, the Plaintiff filed a request for review of reappointment with the Special Committee on the Appeal against Teachers under the Special Act, and the said Special Committee was the Defendant responsible on September 27, 2006. At the time, the Plaintiff was not in a position to take the lead in the situation (title omitted), and there were no specific materials to prevent the grounds for refusal of reappointment and to support the reappointment of the Plaintiff. Thus, the Defendant did not have justifiable grounds for refusing the reappointment of the Plaintiff. On the other hand, the Plaintiff decided to revoke the disposition of refusal of reappointment of the case by determining that there are no special grounds for the refusal of reappointment of the Plaintiff.

[Reasons for Recognition] Unsatisfy, Gap 1 through 9 (including virtual numbers), Eul 3, the purport of the whole pleadings

2. The parties' assertion

The plaintiff asserts that the disposition of refusal to re-election of this case was unlawful and unfair, and that if the plaintiff was subject to a legitimate review of re-election, the plaintiff could have been reappointed against the defendant, and sought compensation for damages equivalent to the lost wages and retirement allowances from March 1, 1992 to July 3, 1995 that the plaintiff could continue to work after re-election, and for mental damages caused by the disposition of refusal to re-election of this case.

In regard to this, the defendant is justified in the disposition of refusal to re-appoint the plaintiff, and even if not, there was no provision on re-appointing under the former Private School Act at the time of the refusal to re-appoint the plaintiff, and the Supreme Court precedents at that time confirmed that the teachers at school as the discretion of the school juristic person did not have the right to expect re-appointing the plaintiff several times, so the defendant did not know that the refusal to re-appoint the plaintiff was illegal, and there was no intention or negligence in relation thereto, and even if so, the plaintiff's damage claim already expired by prescription.

3. Determination

A. Determination as to the establishment of liability for damages

Unlike the current Private School Act, there is no provision regarding the fixed-term reappointment of a teacher under the former Private School Act. However, if a teacher of a private university, who was appointed as a fixed-term teacher and whose term of appointment has expired, has a right to request a fair review based on reasonable standards as to whether he/she is reappointed with an expectation that he/she will be reappointed, barring any special circumstances, if he/she satisfies the above criteria after undergoing a fair review based on reasonable standards on his/her ability and qualities as a teacher, barring special circumstances (see Supreme Court en banc Decision 2000Du7735, Apr. 22, 2004). Thus, a teacher of a private school whose term of office has expired under the former Private School Act shall be entitled to a right to undergo a fair review on reappointment based on reasonable standards and legitimate evaluation. If a teacher of a private university, who could have been reappointed if he/she was illegally refused to be reappointed according to the criteria for review on reappointment, he/she may seek compensation for damages equivalent to wages on the ground that such refusal is an unlawful act (see, e.g.

However, according to the above facts, the defendant, without examining at all the requirements for substantial reappointment, did not ask the plaintiff about the responsibility of the (title omitted) situation caused by the defendant's mistake without examining at all, and rejected the reappointment of the plaintiff on the ground of facts that are different from facts or not confirmed. Such rejection disposition by the defendant is an infringement on the plaintiff's right to be reviewed through reasonable criteria and legitimate evaluation, and it does not change because there was no provision regarding the reappointment under the former Private School Act. Meanwhile, according to the purport of the evidence Nos. 1, 6, 8, and 9 and the whole arguments, the plaintiff did not neglect research activities such as submitting papers up to 30 copies during the working period, and did not interfere with any error in student education and guidance, and there was no punishment such as disciplinary action, etc. by the defendant during the working period, and at the time, there was no specific fact that there was no provision regarding the criteria for reappointment review by the articles of incorporation or personnel regulations of the defendant's private teaching institute. Thus, the plaintiff's rejection disposition of this case can be seen as a tort of this case.

B. Determination on the statute of limitations defense

The "date when the person becomes aware of the damage and the perpetrator" under Article 766 (1) of the Civil Act, which is the starting point of starting the short-term extinctive prescription of a claim for damages caused by a tort, means not only the time when the person actually becomes aware of the occurrence of the damage and the perpetrator, but also the time when the harmful act becomes aware that the damage can be claimed as a tort for this reason. In case where the damage is sustained as a result of continuous tort, unless there are special circumstances, the damage shall be deemed to have been extinguished separately from the time when the person becomes aware of the damage in the application of Article 766 (1) of the Civil Act (see Supreme Court Decision 98Da30285 delivered on March 23, 199, etc.).

In the case of this case where the defendant's refusal disposition against the plaintiff was made against the plaintiff and the plaintiff's failure to comply with the legitimate procedures for reappointment continues to take place, the damages shall be deemed to have been extinctive prescription from the time when the plaintiff became aware of each damages arising from the new tort for each day. However, in the case of this case where the plaintiff's damages equivalent to the lost wages and retirement allowances that occurred due to the illegal rejection disposition of re-employment of this case and compensation for consolation money, not only March 4, 1992 of which the plaintiff was notified of the rejection disposition of this case, but also July 3, 1995 of the date when the plaintiff's final damages occurred, which was more than three years after July 3, 1995, the fact that the lawsuit of this case was filed on March 26, 2007, and therefore the plaintiff's damage claim arising from the rejection disposition of this case has become extinctive prescription. Accordingly, the defendant's

As to this, the plaintiff's extinctive prescription is from the time when he can exercise his right, and there is no provision related to reappointment in the former Private School Act at the time of the refusal disposition of reappointment, and the Supreme Court also held that whether a fixed-term teacher whose term of appointment has expired is a discretionary act by the person who has the right to appoint and dismiss, and thus, cannot file a claim for damages by denying the interests of the lawsuit in civil procedure. Since the Special Act on the Remedy for the Exclusion from Appointment of University Faculty Members was enacted, it is possible to file a claim for damages by asserting the refusal disposition of reappointment, the extinctive prescription of the plaintiff's damage claim should proceed after the date when the above Special Act enters into force or when the decision to revoke the rejection disposition of

On the other hand, the statute of limitations proceeds from the time when a right can be exercised because it comes to an objective right and the time when the right can be exercised can not be exercised. Here, "the case where the right can not be exercised" refers to the case where there is a disability in the exercise of the right, for example, the non-existence of the term or the non-performance of the terms and conditions. In fact, even though the existence of the right or the possibility of the exercise of the right was not known, such a reason does not constitute a legal disability (see Supreme Court Decision 2006Da63150, May 31, 2007, etc.). In this case, under the former Private School Act and the past precedents of the Supreme Court, the legal composition of the legal principle that the decision of refusal to be re-appointed, which infringes on the right to fair review of reappointment, constitutes a tort, is sufficiently possible, and the judicial remedy procedure at the time of the refusal of re-employment, and the change of the judicial precedents following the change in the form of the right or social environment does not obstruct the plaintiff's argument.

Then, the plaintiff asserts that the debtor's claim for the completion of extinctive prescription is an abuse of right if there is an objective disability for the creditor to exercise his/her right. At the time of refusal of reappointment, the plaintiff could not file a lawsuit against the defendant due to lack of precedents or laws of the Supreme Court at the time of refusal of reappointment. This is the same as in the case of other teachers or ordinary people who are denied reappointment, and therefore, it can be deemed that there was an objective disability that the plaintiff could not exercise their right. Thus, the defendant's claim for the completion

However, considering the fact that the fixed-term appointment system itself has been approved as a constitutional system, regardless of whether it was before or after the ruling of inconsistency with the Constitution as to the former Private School Act, the defendant may be deemed to have trusted the Supreme Court's decision that the fixed-term teacher at the time of the disposition of refusal of re-employment is the discretion of the school foundation at the time of the disposition of refusal of re-employment, and the defendant did not engage in any act such as making it impossible or considerably difficult for the plaintiff to exercise his right or extinctive prescription or making it unnecessary to take such measures, the circumstance cited by the plaintiff alone is difficult to deem that the defendant's assertion on the completion of extinctive prescription as an abuse of rights against the principle of good faith is not permissible, and there is no evidence to support that the defendant's refusal

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Jae-ho (Presiding Judge)