[1] In a case where a decision to reject the reappointment of a school foundation for a fixed-term university faculty member is deemed to deviate from or abuse the discretionary power and its judicial effect is denied, whether the decision to reject the reappointment has lost objective legitimacy in order to compensate the school foundation for damages on the ground of constituting a tort (affirmative), and the standard for such determination / In a case where a tort by the school foundation is recognized, the scope of property damage compensation for a private university teacher (=the amount equivalent to wages during the period during which the reappointment is possible) and the method of determining

[2] The scope of binding force on the decision of the Appeal Commission for Teachers

[3] In a case where Gap corporation filed a claim for tort damages against Byung corporation as the assistant professor Byung of Eul university operated by Eul corporation, for three times more than three times, and the rejection of reappointment and the revocation of the Appeal Committee for Teachers has been repeated, the case holding that Gap corporation's rejection of reappointment repeatedly against Byung corporation's decision of the Appeal Committee for Teachers Gap's Teachers' Officers' Officers' Appeal for Teachers' Appeal for Teachers' Appeal for Teachers' Appeal for Teachers' Appeal in light of all the circumstances, it constitutes tort against Byung since it lost objective legitimacy by neglecting objective duty of care when considering the general university's standard

[1] Article 53-2 of the Private School Act, Articles 393, 750, and 763 of the Civil Act / [2] Article 10 (2) (see current Article 10-3) of the former Special Act on the Improvement of Teachers' Status (Amended by Act No. 13936, Feb. 3, 2016) / [3] Article 750 of the Civil Act, Article 53-2 of the Private School Act, Article 10 (2) (see current Article 10-3) of the former Special Act on the Improvement of Teachers' Status (Amended by Act No. 13936, Feb. 3, 2016)

[1] Supreme Court Decision 2007Da42433 Decided July 29, 2010 (Gong2010Ha, 1728) / [2] Supreme Court Decision 2012Du1297 Decided July 25, 2013 (Gong2013Ha, 1613)

Plaintiff (Law Firm Olcle, Attorneys Kim Jung-soo et al., Counsel for the plaintiff-appellant)

School Foundation (Bae, Kim & Lee LLC, Attorneys Cho Il-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2015Na6755 decided October 16, 2015

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case summary and key issue

A. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) Reasons for ex officio dismissal and reinstatement three times

1) The Defendant is a school juristic person operating a university (name omitted). The Plaintiff continued to serve after being appointed as a full-time lecturer at a university (name omitted) on September 1, 199 (name omitted) university (name 1 omitted), and was promoted to an assistant professor on October 1, 2003.

2) (School Name omitted) University (School Name omitted) completed the first ex officio dismissal on the ground that the Plaintiff’s first ex officio dismissal on February 28, 2007, filed an appeal seeking confirmation of invalidity of the first ex officio dismissal, and the teachers’ appeals review committee accepted the Plaintiff’s claim on the ground that the Plaintiff did not comply with the amendment procedure of school regulations for the abolition of the Department on June 18, 2007, on the ground that the Plaintiff did not go through the amendment procedure of school regulations for the abolition of the Department.

3) After undergoing the amendment process of school regulations for abolition (name 1 omitted), the Defendant returned the Plaintiff on October 1, 2007 to the reinstatement on March 1, 2007, and subsequently dismissed the Plaintiff on October 1, 2007. The Plaintiff filed an appeal petition with the appeals review committee to seek confirmation of invalidity of the second ex officio dismissal, and the teachers’ appeals review committee accepted the Plaintiff’s claim on the ground that “the amendment procedure of school regulations is unlawful” on January 7, 2008. The Defendant reappointed the Plaintiff on March 17, 2007 to the end of August 11, 201.

4) After undergoing the amendment procedure of school regulations for abolition (name 1 omitted), the Defendant dismissed the Plaintiff’s claim on May 1, 2008. On the ground that the Plaintiff filed a petition for review of invalidation of the third ex officio dismissal. On July 21, 2008, the teachers’ appeals review committee dismissed the Plaintiff’s claim on the ground that “(name 1 omitted) amendment procedure of school regulations is not defective, and the need for structural reform of the university is recognized” (name 1 omitted). Accordingly, the Plaintiff filed an administrative lawsuit against the teachers’ appeals review committee at the first instance court to seek revocation of the above decision of dismissal. However, the appellate court dismissed the Plaintiff’s claim at the first instance court, on the ground that “the Defendant did not have efforts to avoid dismissal (name 2) and (name 3 omitted) transferred the Plaintiff to the neighboring department, and thus, the third party’s appeal was unlawful and void, and thus, the lower court rendered a final decision on July 25, 2015 (name 300).

(2) Determination of rejection of reappointments 1 to 3

1) On December 3, 2010, the Defendant reinstated the Plaintiff as an assistant professor (name 2 omitted). As the Plaintiff’s four-year employment period was expected to expire on August 31, 2011, the procedures for review of reappointment were continued against the Plaintiff. Of the four-year employment period, the Plaintiff was limited to about 10 months during which the Plaintiff actually worked on repeated ex officio dismissal during the four-year employment period. Nevertheless, the Defendant applied the “standards for research performance exceeding 200% prescribed in the personnel regulations of the Defendant’s faculty members” to the Plaintiff on June 24, 2011 on the ground that “the research results fall short of the research results due to the table adjustment, and the number of items 2 of the performance evaluation,” and the appeals review committee sought revocation of the first appointment decision, and the Plaintiff’s appeal review was rejected on the ground that it did not comply with the principle of equity on November 1, 2011.”

2) Even in the procedure for the examination of reappointment of the Plaintiff who is proceeding thereafter, the Defendant, as in the previous faculty rules, accepted the Plaintiff’s claim on September 27, 2012 on the ground that “the standard of research performance of at least 200%” under the former faculty rules was applied to the Plaintiff, as in the previous case, and “the standard of at least two items of occupational evaluation, failing to meet the standard of good faith and duty to maintain dignity in accordance with plagiarism, violating the duty to maintain dignity in accordance with plagiarism, and failing to meet research performance standard.” The Plaintiff filed an appeal seeking revocation of the second decision of refusal of reappointment, and the teachers’ appeals review committee on January 7, 2013.”

3) On December 19, 2013, where the period subject to review of reappointment is less than one year, the Defendant prepared the detailed criteria for review of reappointment based on the actual period of service, such as applying research achievements not more than 200%, rather than 50%, and notified the Plaintiff of the procedure for review of reappointment again on December 26, 2013. On January 23, 2014, the Plaintiff filed an application for review of reappointment with the Research Ethics Committee on January 21, 2014. The Defendant requested an examination of plagiarism with regard to plagiarism 2 part of the Plaintiff’s research achievements with the Research Ethics Committee on May 20, 2014. However, on May 20, 2014, the Research Ethics Committee determined that plagiarism was plagiarism among 2 Part 1 of the Plaintiff’s research achievements (written signature omitted) of the Plaintiff’s low-plagiarism determined as plagiarism as one of the research achievements of the Plaintiff, but did not submit it as one of research achievements of the second 3rd.

4) On June 18, 2014, the Defendant did not conduct a practical examination of research achievements in Part 3 submitted by the Plaintiff in the third re-employment examination on the ground that the Plaintiff “a plagiarism constitutes a grave cause of plagiarism.” On November 5, 2014, the Plaintiff filed a petition for review seeking revocation of the third decision to refuse re-election. On November 5, 2014, the Teachers’ Appeal Committee rendered a decision to accept the Plaintiff’s claim for plagiarism on the ground that the Plaintiff’s plagiarism was not considered even if the Plaintiff’s plagiarism was partially plagiarism of another’s books. There was a number of research achievements other than the plagiarism book, and there is room for 50% research achievements based on the actual period of service. However, the Plaintiff’s plagiarism did not proceed with a substantive examination of other research outcomes on the ground that the Plaintiff’s plagiarism was deviating from and abusing discretion.”

B. The key issue of the instant case is whether the Defendant is liable to compensate the Plaintiff for property damage equivalent to the amount of wages, since the Defendant’s decision of refusal to dismiss the first or third appointment was an unlawful act that lost objective legitimacy.

2. Relevant legal principles

A. Standard for determining tort liability due to illegal decision to refuse reappointment

1) Even if a decision to refuse the reappointment of a school juristic person for a fixed-term university faculty member is deemed to have deviated from or abused the discretionary power and its judicial effect is denied, in order to hold the school juristic person liable for property damage on the ground that such decision constitutes tort, the refusal of reappointment should be recognized. For this purpose, the school juristic person’s decision to refuse the reappointment should be deemed to have lost objective legitimacy by exercising objective duty of care in light of the general university’s standard. In such a case, whether the decision to refuse the reappointment has lost objective legitimacy should be determined based on whether there exists a substantial reason to assume liability for damages, taking into account all the circumstances, such as the content and nature of the reason for refusal of reappointment, the degree of contribution of the relevant teacher in the process of examination of reappointment, the degree and degree of such refusal, the existence or content of the reason for refusal of reappointment, the contents thereof, and the whole progress of the examination of reappointment, etc.

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 for property damage equivalent to his/her wages during the period during which he/she could have been appointed as a teacher if he/she had not committed such illegal act. The scope of the period 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 university and the actual status of reappointment (the rate of reappointment) by academic field; (c) the structure of the organization of reappointment and promotion of the relevant university (whether the period of service is restricted; (d) the number of times or degree of transit of the relevant university; and (e) the criteria for recognition of qualification for reappointment in the relevant examination; and (e) the scope of compensation for damages is not limited to the amount equivalent to wages paid during the relevant period in which he/she had been dismissed (see Supreme Court Decision 2007Da42433, Jul. 29, 2010).

2) Article 10(2) of the former Special Act on the Improvement of Teachers’ Status (amended by Act No. 13936, Feb. 3, 2016) provides that the decision of the Appeal Committee for Teachers shall bind the person who is subject to disposition. Here, the binding force of the decision of the Appeal Committee for Teachers is not only the matters included in the text of the decision, but also the recognition and decision of the facts constituting the premise, i.e., the decision on the specific grounds of illegality, such as the disposition, etc. (see Supreme Court Decision 2012Du1297, Jul. 25, 2013, etc.).

3. Determination as to the instant case

A. Examining the following circumstances revealed by the facts and records as seen earlier in light of the aforementioned legal principles, the Defendant’s repeated decision to refuse re-election against the decision of the Teachers’ Appeal Committee for the Plaintiff may be deemed to have lost objective legitimacy by failing to perform an objective duty of care when considering the general university’s standard. It is reasonable to deem that the Defendant’s act constitutes a tort against the Plaintiff.

1) Although the Plaintiff worked for about 10 months during the four-year period of employment without any reason attributable to the Defendant’s three-time unfair dismissal, the Defendant, without preparing reasonable criteria taking into account the actual period of employment in the first re-employment examination, decided to refuse the first re-employment by applying the “Research Standards of at least 200%” under the former Personnel Management Regulations, based on the premise that the Plaintiff was in office for four-year period against the Plaintiff, which was not yet reinstated. The Defendant’s “less of research performance” in the first decision to refuse re-employment cannot be a ground for refusal of re-employment, as determined by the Teachers’ Appeal Committee.

2) Notwithstanding a clear decision made by the Appeal Committee for Teachers, the Defendant again rendered a decision to refuse the second re-election by applying “research performance standard of at least 200%” under the former Personnel Management Regulations, as in the previous case, to the second re-election examination conducted by the Defendant. The Defendant’s “research performance shortage”, which is the grounds for refusing the second re-election, is contrary to the binding force of the decision made by the Appeal Committee for Teachers, and thus, cannot be a ground for refusal of legitimate re

3) The Defendant did not conduct a substantive examination of plagiarism 3 copies of research results submitted by the Plaintiff for the 3rd reappointment in the 3rd reappointment examination, and decided to reject the 3rd reappointment solely on the ground that plagiarism is plagiarism. The Plaintiff’s written plagiarism (low signature omitted) was determined by the Research Ethics Committee in the 3rd reappointment examination. However, the Plaintiff’s written plagiarism was determined by the Research Ethics Committee in the 205th century, but the part corresponding to plagiarism among the total 205 pages is limited to 15 pages of the outline. The portion of the total 205 pages is written, and it is necessary to consider that it is necessary to indicate the source as a whole, as it is related to the general theory, and it is not necessary to indicate the source, or even if not, it is not necessary to do so, it is limited to the extent that the Plaintiff neglected to indicate the source. Accordingly, as already decided by the Appeal Committee, the Defendant’s “written plagiarism” in the 3rd

4) Although the Defendant mentioned “a plagiarism” as the grounds for refusal of reappointment in the first and second decisions to refuse reappointment, the Defendant’s request for an examination of plagiarism with respect to the Plaintiff’s research performance was made after the third examination of plagiarism commenced.

5) On December 19, 2013, the Defendant prepared the detailed criteria for evaluation of faculty members with differential standards for examination of reappointment by taking into account the actual period of service according to the purport of the decision of the Appeal Committee for Faculty Members. If the Defendant prepared such reasonable criteria in advance and conducted an examination for fair re-election with the Plaintiff, the Plaintiff is likely to have already fulfilled research performance standards for re-election, as determined by the Appeal Committee for Faculty Members.

B. Nevertheless, solely based on the circumstances indicated in its reasoning, the lower court denied the Defendant’s tort liability, concluding that it was difficult to deem that the Defendant lost objective legitimacy to the extent that it would have caused the Defendant to be liable for damages to the Defendant. In so determining, the lower court erred by misapprehending the legal doctrine on the decision to refuse the reappointment of a university faculty member and the binding force of the decision of the Appeal Committee for Teachers, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

4. Conclusion

Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)