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

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

March 24, 2009

Seoul Central District Court Decision 2008Gadan16422 Decided August 22, 2008

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 20 million won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. The plaintiff's appointment of professor and exclusion from reappointment;

The Plaintiff was reappointed as a food engineering or an assistant professor at ○○○ University (hereinafter “instant university”) for a fixed period of two years on March 1, 198, and was newly appointed as a full-time lecturer and appointed to the same department as an assistant professor at the same university for a period of four years on April 1, 1990, and on July 1, 1993, the aforementioned ○○ University was re-appointed as an assistant professor on July 1, 1993 (hereinafter “○○ University”) for a fixed period of four years, but the Plaintiff was reappointed as a food engineering or an assistant professor on August 31, 1997 on the ground that he received three point five points below three point five (3.5), which is the horizontal point as of August 31, 1997. The president of the instant university refused to be reappointed from the Plaintiff on August 31, 1997 (hereinafter “instant university”). The president refused to be reappointed as of September 1, 1997”).

B. Lawsuit and result of revocation of revocation of the plaintiff's refusal of reappointment

The plaintiff filed a lawsuit seeking confirmation of the revocation and invalidation of the disposition rejecting re-election against the disposition rejecting re-election, but the Seoul High Court dismissed the lawsuit on October 22, 1998 on the ground that the disposition rejecting the reappointment of the university of this case does not constitute an administrative disposition subject to administrative litigation as of October 22, 1998.

(c) Decision on revocation of the Special Committee on Appeal against School Teachers;

In other words, on October 24, 2005, the Plaintiff filed an application for reexamination of reappointment with the Special Committee on Examination of Appeal against Teachers by the Ministry of Education and Human Resources Development. On January 10, 2006, the said Special Committee on Examination of Appeal against Teachers rendered a decision that “the president of the instant university shall revoke the disposition of rejection of reappointment made by the respondent (the plaintiff) on August 31, 1997.”

In the decision, "it is recognized that there was a conflict between the university and college due to the applicant's active filing of problems about school administration through the applicant's active activities," the respondent abolished previous examination regulations due to the expiration of the applicant's term of appointment, and changed to facilitate the involvement of the respondent (the president) in the re-examination by enacting new examination guidelines, and the fact that arbitrary evaluation has been conducted without any objective grounds for some evaluation areas is not based on fairness and objectivity, and in the case of (a) it is judged that the rejection of re-election to the applicant is unfair."

(d) Reinstatement of the plaintiff;

After the Special Committee on the Examination of Appeal against Teachers was issued a decision on revocation of reappointment, the university of this case reinstated the plaintiff as of March 27, 2006.

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. Judgment on the plaintiff's claim

A. The parties' assertion

1) The plaintiff's assertion

Although the Plaintiff has the right to request a fair review on whether to be reappointed at the time of examining the appointment of an assistant professor of the instant university, the Plaintiff infringed the Plaintiff’s above rights by the name of the instant disposition rejecting the reappointment after the examination of the reappointment. As such, the Plaintiff first sought payment of the amount stated in the purport of the claim, among damages for tort against the Defendant, and damages equivalent to the amount of benefits suffered due to the Plaintiff’s non-existence of duties as a teacher of the instant university during the period from the date following the expiration date of the term of appointment until March 27, 2006, as well as damages for mental suffering from the Plaintiff’s tort.

2) The defendant's assertion

In this regard, the defendant asserts that the disposition rejecting the reappointment of this case is not an illegal or unreasonable disposition, and further, that the plaintiff's claim for damages had already expired by the lapse of five years of extinctive prescription under the Budget and Accounts Act or the extinctive prescription for damages caused by illegal acts from the time of notice of

B. Determination on the cause of the claim

1) Whether the disposition rejecting reappointment of this case constitutes a tort

A) Criteria for determining illegal acts of refusing reappointment

An assistant professor of a national or public university who has been 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 as a teacher and, barring any special circumstance, has the right to apply for a fair review on whether he/she is reappointed in accordance with reasonable standards, barring special circumstances (see Supreme Court en banc Decision 2000Du7735, Apr. 22, 2004). In addition, if a private school teacher who would have been reappointed if he/she had undergone a lawful review on reappointment in accordance with reasonable criteria for review on reappointment was unlawfully rejected, he/she may seek compensation for damages equivalent to wages on the ground that such rejection of reappointment constitutes tort (see Supreme Court Decision 2003Da262, Mar. 9, 2006). The same legal doctrine applies to a national or public university teacher.

B) the facts of recognition

(1) On December 23, 1996, the Plaintiff and the faculty members of the instant university submitted a written application to the Cheongdae-gu Civil Service Office and the Auditor General of the Ministry of Education for the visa regarding the personnel affairs and school administration of the president of the instant university, and the Ministry of Education conducted a special audit on the instant university in the Ministry of Education, and some of the audit results were reported to the press.

(2) On August 22, 199, immediately before the expiration date of the Plaintiff’s employment period ( August 31, 1997), the University abolished the existing “Rules on Fixed-Term Appointment Review” and enacted the “Guidelines on Fixed-Term Appointment Review” including the contents of the president’s evaluation, and applied the review for reappointment of the Plaintiff as follows.

(3) The content of the newly enacted Guidelines for the Examination of Fixed-Term Appointment of the University is as follows.

Article 1 (Purpose) The purpose of this Guidelines is to ensure fairness in the examination of appointment by setting the criteria for the examination of teachers employed on a fixed-term basis after expiration of the term of appointment under Article 17 of the Regulations on the Personnel Committee of Public Educational Officials and Article 7 of the Regulations on the Personnel Management of Mal

The data necessary for the examination of appointment of fixed-term workers under Article 2 (Examination Data) shall be as follows:

1. Personnel records auxiliary card (Preparation by the principal): Attached Form 1;

2. Research records within the term of appointment (prepare in person): Attached Form 2;

3. Research records (a thesis, etc. within the period of appointment);

4. The achievement of a person subject to examination inside and outside Korea (the person himself/herself shall prepare);

5. Examination and rating table for fixed-term appointment: Attached Form 3;

6. A general table for examination, evaluation, and evaluation of fixed-term appointment: Attached Form 5.

Article 3 (Criteria for Examination) Examination of fixed-term teachers shall focus on the following matters during the term of appointment:

1. Research activities and academic activities in the specialized field;

2. Ability and performance of the teaching, research, and life guidance of students;

3. Compliance with education-related Acts and subordinate statutes, and maintenance of dignity as teachers.

Article 4 (Preparation of Examination Evaluation Table and Examination Evaluation General Table) (1) The former teacher's fixed-term appointment evaluation table shall be prepared by the president, the director of the faculty department, the director of the faculty department, the director of the student department, the director of the faculty, and the director of the department (However, the director of the faculty, the director of the department, and the director of the department shall be prepared only for the teachers to whom he/she belongs) in accordance with the examination data in attached Form 3 and the objective grounds,

(2) If the average plane point as a result of the review evaluation under the preceding paragraph is less than 3.5, the reason therefor shall be clearly indicated in the total column.

(3) Where a person subject to examination or evaluation of fixed-term appointment of full-time teachers is subject to examination, he/she shall not be rated.

Article 5 (Submission and Deliberation of Review Data) (1) The president shall submit review data under Article 2 to the personnel committee, and the personnel committee shall deliberate on and decide whether to give consent thereto.

(2) The Personnel Committee may request the President from time to time to submit data necessary for deliberation.

Article 6 (Criteria for Appointment of Fixed-Term Teachers) In cases falling under any of the following subparagraphs, it shall be excluded from fixed-term appointment:

1. Where research achievements do not reach 200%;

2. Where the average plane point of the examination rating general mark is less than 3.5:

Article 7 (Opportunities for Explanations) The Personnel Committee shall give the full-time teacher excluded from fixed-term appointment an opportunity to attend the Personnel Committee and to vindicate himself.

The supplementary guidelines shall enter into force on August 23, 1997.

본문내 포함된 표 ＼ 평정항목 학과장 학부장 학생과장 교무과장 총장 평균 인사위원회 심의 수정 이유 1. 연구실적 및 전문영역의 학회 활동 ① 연구능력 4 5 5 5 4 4.60 5.00 박사학위 소지자 ② 논문 및 전시, 창작의 질 3 3 3 3 3 3.00 3.00 ？ ③ 논문 및 전시, 창작의 양 4 5 5 5 4 4.60 5.00 논문 420% ④ 학술회의 발표 및 학술활동 3 4 4 4 4 3.80 4.00 학술발표 1회 ⑤ 연구과제 수탁 및 연수실적 4 3 5 5 3 4.00 5.00 산업체 연수 10일 ⑥ 저서, 특허 및 자격증 3 3 3 3 3 3.00 3.00 ？ ⑦ 외국어의 능력 4 4 4 4 4 4.00 3.00 1개 외국어 가능 2. 학생의 교수·연구 및 생활지도에 대한 능력과 실적 ① 수업능력 4 5 4 4 4 4.20 4.00 전공과목 일부유사 ② 수업이행상태 4 4 4 4 3 3.80 3.80 ？ ③ 교육효과 3 4 4 3 3 3.40 3.40 ？ ④ 평가의 공정성 4 4 3 4 3 3.60 3.00 출석부 미제출 ⑤ 학생지도 열의 4 3 3 4 2 3.20 3.00 학생생활지도 열의보통 ⑥ 학생지도 실적 3 3 2 3 2 2.60 2.00 학생생활지도실적 극히 저조 ⑦ 산학협력 활동 4 3 4 3 3 3.40 3.40 ？ 3. 교육관계 법령의 준수 기타 교원으로서의 품위 유지 ① 국가사회에 대한 기여도 3 4 4 4 3 3.60 3.60 ？ ② 소속집단에 대한 기여도 3 3 3 3 2 2.80 3.00 행사참여율 보통 ③ 근무상황 및 상벌관계 4 4 3 4 2 3.40 3.00 교수회 참여율 저조, 근무 불충실 ④ 인격과 품위 3 3 2 2 2 2.40 2.00 학교 및 교직원 명예훼손 등 ⑤ 인간관계 3 3 2 2 2 2.40 2.40 ？ ⑥ 윤리관 및 교육이념 4 4 2 2 2 2.80 2.40 책임감 결여 합계 3.55 3.70 3.45 3.55 2.90 3.43 3.35 ？ 총평 1. 학생지도의 열의 및 지도실적 불량 2. 학교의 명예훼손, 동료 교수 및 학과 교수간 불화, 근무상태 불량 등 교원으로서의 품위 손상 3. 기타

(4) The examination of the reappointment of the university of this case, which was conducted on August 27, 1997, was subject to 11 assistant professors in each of the 11 departments, including the Plaintiff. Most of the evaluators evaluated the Plaintiff by referring only to abstract reasons, such as “nives”, “ordinary”, and “unpaid amount,” while giving the rating points to the Plaintiff. As a result of the evaluation conducted with the consent of the personnel committee, the Plaintiff was dismissed from reappointment by receiving the results of the evaluation as follows, and the remainder 11 was reappointed.

(5) At the time of the instant examination for reappointment, the number of Nonparty 1 and records of Non-Party 2’s education and guidance - student instruction - The number of students present at sports meets, the number of classes, the number of teaching candidates, and the number of teaching recommendation - Of the rating items, the number of Non-Party 1 and Non-Party 2 were recorded as non-Party 1 and Non-Party 1 and Non-Party 2, Non-Party 1 and Non-Party 2, Non-Party 9 and Non-Party 1 and Non-Party 2, Non-Party 9, Non-Party 1 and Non-Party 2, Non-Party 9, Non-Party 1 and Non-Party 2, Non-Party 1 and Non-Party 2, Non-Party 1 and Non-Party 2, Non-Party 9 and Non-Party 1 and Non-Party 2, Non-Party 9 and Non-Party 2, Non-Party 1 and 197, respectively, for 196 and 197, respectively.

C) Determination

In light of the above facts, the enactment of new guidelines for review that includes the president who seems to have been dissatisfied with the plaintiff due to the plaintiff's civil petition, etc., was conducted at the expiration of the plaintiff's term of appointment; the first 3.56 points average of the average of 3.56 points as a result of the evaluation by four evaluators other than the president. The president who participated in the examination for reappointment of the plaintiff gives 2.90 points to the plaintiff, the highest score, and has a significant impact on the failure to meet the standards for review of reappointment; the evaluation of the appraiser's evaluation and teachers' personnel committee's evaluation of the 2.3. Other correction of the "2. student's ability and performance to provide guidance and guidance - student instruction - other teacher's dignity and dignity - human dignity, human relations, ethics and ideology of the education related Acts and subordinate statutes" were evaluated as two points which considerably affect the plaintiff's reappointment criteria, and thus, it is difficult to conclude that the plaintiff's refusal to review the plaintiff's civil petition and the personnel committee of the school without objective grounds for review.

C. Determination on the statute of limitations defense

1) Determination

However, "the date when the injured party becomes aware of the damage and the perpetrator" under Article 766 (1) of the Civil Act, which is the starting point of the short-term extinctive prescription of the claim for damages due to a tort, means the time when the injured party has reasonably and specifically recognized the facts requiring the tort, such as the occurrence of the damage, the existence of the illegal harmful act, and the occurrence of the harmful act and the fact that there is a proximate causal relation between the harmful act and the damage. Whether the injured party is deemed to have actually and concretely recognized the facts requiring the tort should be reasonably acknowledged in consideration of various objective circumstances in individual cases and situations in which the claim for damages is practically possible (see Supreme Court Decision 200Da2249, Jun. 23, 2002).

In addition, "the date when the tort was committed", which is the starting point of the statute of limitations, is not the date of the harmful act, but the date when the result of the damage was actually caused. However, if the result of the damage was realistic, the statute of limitations begins when it can be deemed that the damage caused by the harmful act is realistic regardless of whether the victim knew or could have anticipated the occurrence of the damage (see Supreme Court Decision 2004Da71881, May 13, 2005).

However, the defendant's refusal disposition of reappointment was made on August 31, 1997, and the plaintiff lost his status as a teacher immediately after that day and the plaintiff's damage therefrom also occurred on the above day. Thus, at that time, the plaintiff was already aware of the illegality of the refusal disposition of reappointment of this case and the identity of the perpetrator and losses caused thereby (the same shall apply to the facts based on which the plaintiff asserted that the refusal disposition of reappointment of this case against the defendant was illegal or invalid and that the plaintiff had received a lawsuit seeking nullification and nullification of the disposition of refusal of reappointment of this case against the defendant and received a judgment of the court of loss)

Therefore, the period of extinctive prescription of the Plaintiff’s right to claim damages against the Defendant due to the disposition rejecting reappointment of the instant case is run from that time. It is clear in the record that the Plaintiff’s lawsuit of this case was filed on January 16, 2008, which is apparent that the period of extinctive prescription has elapsed three years since the lawsuit of this case was filed on January 16, 208. Thus, the right

2) Whether the judicial environment before the Supreme Court en banc Decision 2000Du7735 Decided April 22, 2004 (hereinafter referred to as "electric power resource judgment") constitutes a cause for legal disability.

A) The plaintiff's assertion

In the past, the Supreme Court interpreted that the case of refusal of reappointment of a fixed-term teacher whose term of appointment expires under the previous Private School Act belongs to a discretionary act according to the judgment of the person who has the right to appoint and dismiss. In the civil procedure, there is no judicial remedy such as a claim for damages against illegal refusal of reappointment by denying the interest of a lawsuit seeking nullification of the disposition of refusal of reappointment, and thus, the case was modified by the en banc decision and became the subject of judicial review.

Therefore, prior to the en banc Decision, the Plaintiff’s failure to dismiss the reappointment of this case is not recognized to be illegal, and is in a legal disability that is unable to exercise the right to claim compensation for damages due to illegal rejection of reappointment.

Thus, the plaintiff becomes aware of the damage and the perpetrator caused by the disposition rejecting reappointment of this case only after the decision of the en banc was rendered. Thus, on April 22, 2004, which is the date of the en banc decision, the starting point of the extinctive prescription should be the starting point.

B) Determination

(1) The extinctive prescription shall not proceed from the time when an objective right arises and the exercise of such right is possible, and while it is impossible to exercise such right, the term "when it is impossible to exercise such right" refers to a disability under the Act on the Exercise of such right, for example, where there exists a cause of disability, such as the passage of a period or the non-performance of conditions, etc. In fact, even if the right holder was not aware of the existence of such right or the possibility of exercise of such right, or was not negligent when he was unaware of such right, such cause does not constitute a legal disability (see, e.g., Supreme Court Decision 2006Da

(2) The en banc Decision held that the assistant professor of a national or public university who has been appointed as a fixed-term teacher and whose term of appointment has expired after undergoing a fair examination based on reasonable standards on his or her ability and qualities as a teacher, barring any special circumstances, has the right to request a fair review based on reasonable standards on whether he or she is reappointed with the expectation that he or she will be reappointed. The fact that the previous Supreme Court ruling has been abolished is significant in this court.

However, even before the ruling of inconsistency with the Constitution or en banc Decision on the previous Private School, it is sufficiently possible to argue that the rejection of reappointment constitutes a tort due to the infringement of the right to request a fair review of reappointment or the deviation from and abuse of discretionary power even before the ruling constitutes a tort. However, even if no such legal reasoning was presented or such assertion was made at the time of refusal of reappointment, it is merely not accepted by the court or the Teachers Disciplinary Review Committee at the time of the ruling of refusal of reappointment, and it is not an exclusion of judicial remedy itself at the time of the ruling of refusal of reappointment. Further, just because the previous ruling was changed by the en banc Decision, the previous ruling does not constitute an unlawful act only after the ruling of refusal of reappointment, and changes in the precedents following changes in the form of rights or social environment do not constitute a legal obstacle (see Supreme Court en banc Decision 90Meu23899, Dec. 24, 191). Thus, it cannot be viewed that there was a legal obstacle to the plaintiff's right to claim insurance proceeds directly from the judgment of the Supreme Court.

3) Whether extinctive prescription is underway due to continuous loss of the amount equivalent to monthly wages

A) The plaintiff's assertion

The Defendant University rendered an illegal disposition rejecting the reappointment of the Plaintiff against the Plaintiff, and thereafter, since the Plaintiff’s failure to implement the lawful procedures for reappointment continues to cause damages to the Plaintiff, the damages therefrom are based on a new tort on each day, and the extinctive prescription for each claim for damages therefrom begins from the time it becomes aware of each damages.

B) Determination

However, in the case of a private school teacher, even though the rejection disposition on reappointment for a teacher whose term of appointment expires under the current Private School Act is null and void, the teacher concerned is not able to recover his status as a professor as a matter of course, and the school juristic person is also liable for damages for the reason that such rejection disposition constitutes a tort, and the Constitutional Court does not necessarily bear the obligation to conclude a contract for reappointment with the teacher, and the Constitutional Court also decides on the unconstitutionality of the Special Act on the Relief of Persons Re-employment. Even if the above Special Committee's decision on rejection disposition on reappointment was issued at the time of the enforcement of the previous Private School Act, the effect of the decision on rejection disposition on reappointment is to confirm "unfair", and it cannot be said that the "the relationship between the teacher's appointment and the pertinent school juristic person refused to be reappointed" or "the school juristic person has the effect of the rejection disposition on reappointment of the teacher concerned until the time of the rejection disposition on the ground that the rejection disposition on reappointment is not an unlawful act of the plaintiff's refusal of reappointment in the procedure of this case's rejection.

Therefore, the Plaintiff’s assertion based on the premise that the Defendant’s refusal to re-appoint the Plaintiff after the disposition of refusal to re-appoint the Plaintiff constitutes a continuous tort cannot be accepted.

4) Sub-committee

Therefore, the defendant's defense that the plaintiff's right to claim damages has expired by prescription is reasonable.

D. Whether the grounds for extinctive prescription are contrary to the good faith principle

1) The plaintiff's assertion

As to the defendant's defense of extinctive prescription, the plaintiff did not provide any remedy for the teachers who were unfairly reappointed in the operation of the past fixed-term teachers system, and considering the recent special law, etc., the defendant asserts that the defendant's assertion of extinctive prescription is an abuse of rights against the good faith principle.

2) Determination

On the other hand, the defendant's assertion for the completion of the statute of limitations cannot be allowed as an abuse of rights against the principle of good faith in the case of special circumstances such as making it impossible or considerably difficult for the defendant to exercise his right or extinctive prescription before the completion of the statute of limitations, or making it unnecessary to take such measures, or making the plaintiff believe that it is objectively unable to exercise his right, or making the defendant not to invoke the statute of limitations after the completion of the statute of limitations, or making the plaintiff trust it. However, the defendant cannot be allowed to assert the completion of the statute of limitations as an abuse of rights against the principle of good faith. Thus, the plaintiff's assertion for the completion of the statute of limitations in the case of this case cannot be viewed

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yoon Sung-won (Presiding Judge)