[1] Whether a teacher of a national or public university who has been appointed as a fixed-term teacher under the former Public Educational Officials Act and whose term of appointment has expired is entitled to request an examination on whether he/she is reappointed (affirmative), and the requirements and criteria for compensation for property damage to the appointing authority on the ground that a disposition rejecting the reappointment of a teacher of a national or public university constitutes a tort

[2] In a case where the reappointment of a teacher of a national or public university appointed on a fixed-term basis is refused before the Supreme Court en banc Decision 2000Du7735 Decided April 22, 2004 was rendered, whether the appointing authority can be liable for damages on the ground that it is unfair (negative)

[3] Whether the person who has the authority to appoint teachers of national and public universities due to illegal refusal of reappointment can be liable for damages only after the time when the person who has the authority to appoint teachers of national and public universities objectively verified (affirmative)

[4] The case holding that the State's liability for compensation is denied in the case where a national university teacher excluded from the examination of reappointment prior to the Supreme Court en banc Decision 2000Du7735 Decided April 22, 2004 filed a request for reexamination to the Special Committee on Examination of Appeal of Teachers pursuant to the "Special Act for the Relief of Persons Disqualified from Appointment of University Faculty Members" after the above decision was rendered, and returned to the original state after the decision to revoke the refusal of reappointment was rendered, and the State's compensation was

[1] Under the former Public Educational Officials Act (amended by Act No. 7353 of Jan. 27, 2005), a teacher of a national or public university whose term of appointment has expired after being appointed as a fixed-term teacher under a fair review based on reasonable standards on his or her ability and qualities as a teacher has the right to apply for review on whether he or she is reappointed, barring special circumstances. However, in order to impose liability for damages on the person who has the authority to appoint the faculty of a national or public university on the ground that such disposition of refusal to re-appointing is deemed to deviate from and abuse of discretion and constitutes tort, it should be recognized that such refusal was caused by intention or negligence of the person who has the authority to appoint the faculty of a national or public university. In order to recognize such intention or negligence, it should be recognized that the person who has the authority to appoint the faculty of a national or public university has lost the objective legitimacy by failing to perform an objective duty of care.

[2] Before the Supreme Court en banc Decision 2000Du7735 Decided April 22, 2004, the Supreme Court held that, on the grounds that there is no provision on the procedures and requirements for reappointment with respect to the faculty of a national or public university appointed as a fixed-term position, the status of the university faculty as a university faculty member was naturally terminated due to the expiration of the term of appointment, and as a result, the existence of a right to demand a fair review on the expectation of reappointment or reappointment due to the expiration of the term of appointment has been identified as an act of free discretion of the person who is excluded from judicial review. Under the current situation of statutory interpretation, the Supreme Court en banc Decision 2000Du7735 Decided April 22, 2004, on the ground that the above Supreme Court Decision 2000Du7735 decided on the appointment authority of a national or public university is rendered and recognized only due to changes in legal interpretation, imposing liability for damages on the previous teachers' rights or infringement of legal interests of the national or public university.

[3] After the Supreme Court en banc Decision 2000Du7735 Decided April 22, 2004 sentenced, the right to demand a fair review on whether the faculty member of the State or the public university is reappointed is recognized. Thus, the person who has the authority to appoint the faculty of the State or the public university is entitled to be liable for damages unless he/she resumess the procedure for review on reappointment without special circumstances. However, the procedure for reappointment is normally conducted in the order of application for reappointment, review on reappointment, and determination on whether to be reappointed. Thus, if the person who has the authority to appoint the faculty of the State or the public university is liable for damages on the ground that the procedure is not resumed, the person who has the authority to appoint the faculty of the State or the public university is liable for damages on the ground that the person fails to perform his/her duty to review immediately without indicating the relevant teacher's request for reexamination, and the liability for damages of the person who has the authority to appoint the faculty of the State or the public university due to illegal rejection can only be confirmed after the applicant for reexamination.

[4] In a case where a national university teacher, who was excluded from reappointment before the Supreme Court en banc Decision 2000Du7735 Decided April 22, 2004, filed a request for reexamination to the Special Committee on Examination of Appeal for Teachers under the "Special Act on the Relief of Persons Disqualified from Appointment of University Faculty Members" after the said decision was rendered, and filed a claim for state compensation for damages caused by denial of reappointment after reinstatement, the case holding that the state compensation liability for damages was not denied on the ground that the appointing authority's intentional act or negligence cannot be recognized for damages caused by the failure of reinstatement before the above decision was rendered, and that with respect to damages caused by delay in reinstatement after the above decision was rendered, the time when the appointing authority can clearly confirm the intention of reexamination of the relevant teacher's application for reexamination was after the date of filing a request for reexamination with the Special Committee on Examination of Appeal for Teachers, on the ground that the procedure was completed more than five months thereafter, and thus, the appointing authority cannot be deemed liable

[1] Article 2 of the State Compensation Act, Article 1-3 of the former Public Educational Officials Act (amended by Act No. 7353 of Jan. 27, 2005), Article 5-2 of the former Decree on the Appointment of Education (amended by Presidential Decree No. 18782 of Apr. 15, 2005) / [2] Article 2 of the State Compensation Act, Article 11-3 of the former Public Educational Officials Act (amended by Act No. 7353 of Jan. 27, 2005), Article 5-2 of the former Decree on the Appointment of Education (amended by Presidential Decree No. 18782 of Apr. 15, 2005), Article 2 of the State Compensation Act, Article 11-3 of the former Public Educational Officials Act (amended by Act No. 7353 of Jan. 27, 2005), Article 11-3 of the former Public Educational Officials Act, Article 11-3 (2) and (4) of the former Public Educational Officials Act

[1] [2] [3] Supreme Court en banc Decision 2000Du7735 Decided April 22, 2004 (Gong2004Sang, 905) Supreme Court Decision 2007Da42433 Decided July 29, 2010 (Gong2010Ha, 1728)

Plaintiff (Law Firm Lee, Attorneys Lee Won-young et al., Counsel for the plaintiff-appellant)

Republic of Korea (Attorney Lee Jae-soo, Counsel for defendant-appellant)

Seoul Central District Court Decision 2008Na30399 Decided April 7, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

Prior to the judgment on the grounds of appeal, we first examine whether the refusal of reappointment constitutes a tort.

1. Legal principles on liability for damages caused by unlawful denial of reappointment by a national or public university

A. Under the former Public Educational Officials Act (amended by Act No. 7353 of Jan. 27, 2005), a teacher of a national or public university whose term of appointment has expired after being appointed as a fixed-term teacher shall have the right to apply for the review of reappointment under the law or sound reasoning, barring any special circumstance, with the expectation that he/she shall be reappointed, unless he/she satisfies the standards after undergoing a fair review based on reasonable standards on his/her ability and qualities as a teacher (see Supreme Court en banc Decision 2000Du7735 of Apr. 22, 2004). However, in order to hold the person who has the authority to appoint a teacher of a national or public university liable for damages against the person who has the authority to appoint a teacher of a national or public university on the ground that the disposition to refuse reappointment was deemed to deviate from or abuse his/her discretion and that it was caused by intention or negligence of the person who has the authority to appoint the teacher of a national or public university.

B. (1) Before the Supreme Court en banc Decision 2000Du7735 Decided April 22, 2004 (hereinafter “2004 en banc Decision”), the Supreme Court, on the grounds that the term of appointment does not stipulate any provision on the procedures and requirements for reappointment with respect to the faculty members of state-owned and public universities appointed under the term of appointment, anywhere the relevant law requires the appointment authority to re-appoint a person whose term of appointment expires, or on the grounds that the term of appointment does not stipulate any provision on the procedures and requirements for re-election, etc., the university faculty appointed for a specified term seems to have terminated as a matter of course due to the expiration of the term of appointment. As a result, the existence of the right to demand a fair review on the expected appointment or whether they are re-appointed by denying the existence of the right to demand

Under the current situation of statutory interpretation, the Supreme Court en banc Decision in 2004 was rendered to the person who has the authority to appoint the faculty of the State and the public university, and on the basis of the right to apply for review of reappointment recognized only after the change of legal interpretation, imposing liability for damages on the previous teachers of the State and the public university on the outcome of the rights or infringement of legal interests of the teachers of the State and the public university, is nothing more than demanding the observance of the norm that was interpreted as not having existed generally at time or expectationing the performance of the duty of due care that is not practicable. Therefore, if the reappointment is refused with respect to the faculty of the State and the public university appointed on a fixed-term basis prior to the Supreme Court en banc Decision in 2004, it shall be deemed that the person who

(2) Meanwhile, after the Supreme Court en banc Decision was rendered in 2004, the right to request a fair review on whether a teacher of a national or public university appointed on a fixed-term basis is reappointed is recognized. Therefore, the person who has the authority to appoint the faculty of a national or public university whose appointment has been refused in the past may be liable for damages unless he/she resumes the procedure for review of reappointment without special circumstances.

However, the procedure of reappointment is normally conducted in the order of application for reappointment, examination of reappointment, and determination of whether to be reappointed. Thus, if the person who has the authority to appoint teachers of national and public universities is liable for damages on the ground that he/she does not resume the procedure of examination of reappointment, the person who has the authority to appoint teachers

Therefore, it is not reasonable to immediately impose liability for damages on the person who has the authority to appoint teachers of national and public universities due to nonperformance of the duty to review, and the liability for damages on the person who has the authority to appoint teachers of national and public universities due to illegal refusal of reappointment can only be held liable only after the time when the person who has the authority to appoint teachers of national and public universities objectively verified (see Supreme Court Decision 2007Da42433, Jul. 29, 2010).

2. Determination as to the instant case

According to the facts established by the court below, on August 31, 1997, before the Supreme Court en banc Decision was rendered in 2004, the plaintiff was dismissed from reappointment from the review of reappointment on August 31, 1997, and thereafter, on October 24, 2005, the plaintiff filed a re-examination with the Special Committee on Examination of Appeal of Teachers under the Special Act for the Relief of Persons Deserting from Appointment of University Faculty Members, and received the decision to revoke the refusal of reappointment on January 10, 2006, and was reinstated on March 27, 2006.

Examining these facts in light of the legal principles as seen earlier, prior to the Supreme Court en banc Decision in 2004, the Defendant’s intention or negligence cannot be recognized with respect to damages incurred by the failure of the Plaintiff to be reinstated until the Supreme Court Decision was rendered.

Next, in order to hold the defendant liable for the delay in reinstatement after the decision of the Supreme Court in 2004 was rendered, an applicant for reexamination of teachers excluded from reappointment should be confirmed. In this case, it is reasonable to view that the time when the defendant can clearly confirm the plaintiff's intention of reexamination after October 24, 2005, the time when the plaintiff filed a request for reexamination with the Special Committee on the Appeal of Teachers. Considering the period necessary for the defendant to conduct reexamination after deliberation by the Special Committee on the Appeal of Teachers, it is difficult to view that the defendant is liable for the delay in the reinstatement procedure to the defendant's side who completed the procedure of reexamination five months after the plaintiff's request for reexamination.

Therefore, the claim for damages due to the refusal of reappointment of this case cannot be accepted without considering the defendant's argument about the completion of extinctive prescription, and the judgment of the court below which accepted the defendant's tort and rejected the plaintiff's claim is justified in conclusion, but the reasoning of the judgment of the court below is inappropriate. Ultimately, the plaintiff's argument that the refusal of reappointment of this case constitutes a tort cannot be accepted without examining any further grounds of appeal on the premise that it constitutes a tort.

3. Conclusion

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

Justices Lee Hong-hoon (Presiding Justice)