2017Gahap205008 Objection

A Educational Foundation

[Defendant-Appellee] Plaintiff 1 et al., Counsel for defendant-appellee

B

March 22, 2018

April 19, 2018

1. Of the instant lawsuit, the part of the instant lawsuit by the Defendant’s Daegu District Court 2014Kahap3064 against the Plaintiff seeking the Defendant’s refusal of compulsory execution based on the decision of recommending a compromise in the provisional disposition of the execution procedure for reappointment.

2. The plaintiff's remaining claims are dismissed.

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

The defendant's compulsory execution against the plaintiff in Daegu District Court 2014Kahap3064 is denied based on the decision of recommending compromise in the provisional disposition for performance of reappointment procedures. The defendant shall pay to the plaintiff 200,50,000 won with 5% per annum from June 30, 2017 to the service date of a copy of the complaint in this case, and 15% per annum from the next day to the date of full payment.

1. Basic facts

A. Status of the parties

On March 1, 2002, the defendant was appointed as a full-time lecturer belonging to the department of social welfare at C University established and operated by the plaintiff.

B. The plaintiff's refusal of reappointment and lawsuit on such refusal

1) On January 7, 2004, the Plaintiff notified the Defendant that he would refuse to renew the contract (hereinafter referred to as “measures to refuse re-election”) as of the expiration of the contract period as of February 29, 2004. However, on August 17, 2011, the Plaintiff notified the Defendant that he will be reinstated as an assistant professor for a period from March 1, 2004 to February 29, 2012, following the Defendant’s petition for review of appeal, administrative litigation, civil litigation, etc. filed by the Defendant. (2) On January 16, 2012, the Plaintiff treated the Defendant’s member on the ground that the board of directors held on February 9, 2012, held on the same year as the teachers’ personnel committee held on January 16, 2012, and notified the Defendant that his appointment period expires as of February 29, 2012 (hereinafter referred to as “the second rejection of appointment”). Accordingly, the Plaintiff rejected the Defendant’s request from the appeals review committee.

3) The Plaintiff did not proceed with the procedures for the examination of reappointment against the Defendant. The Defendant confirmed that the second refusal of reappointment was null and void, and filed a lawsuit seeking compensation for damages, etc. equivalent to the wages or wages until he/she is reinstated (Seoul District Court 2012Gahap4392). The said court rendered a judgment in favor of the Defendant on September 5, 2012, stating that “The second refusal of reappointment is null and void due to substantial and procedural defects, and the Plaintiff is liable to pay the Defendant damages equivalent to the wages and its delay damages equivalent thereto on March 1, 2012, the expiration of the term of appointment, and until the procedure for the examination of reappointment with the Defendant is implemented.” Accordingly, the Plaintiff’s appeal (Seoul High Court 2012Na4948) and the final appeal (Supreme Court 2013Da14613, Apr. 1, 2012) became final and conclusive.

4) On August 6, 2013, the Plaintiff notified the Defendant that he/she decided to proceed with the review of reappointment, etc., followed the procedures for review of reappointment against the Defendant. On October 29, 2013, the Plaintiff notified the Defendant that he/she was disqualified from reappointment on the ground of research failure, etc. (hereinafter “third refusal measure”).

5) On October 30, 2013, the Defendant filed a claim for the revocation of the third measure to refuse reappointment with the Teachers’ Appeal Committee, but the Teachers’ Appeal Committee rendered a decision to dismiss the Defendant’s claim on January 15, 2014. Accordingly, on January 17, 2014, the Defendant filed a lawsuit seeking the revocation of the said decision to dismiss (Seoul Administrative Court 2014Guhap50866), and the said court rendered a favorable judgment against the Defendant that revoked the said decision to dismiss, and the appeal filed by the Teachers’ Appeal Committee (Seoul High Court 2014Nu58107) was all dismissed, and the said judgment became final and conclusive as it is. The Defendant’s application for provisional disposition to implement the procedures for reappointment, the seizure of claims, and the collection order, etc.

1) On July 14, 2014, the Defendant: (a) defects in an application for provisional disposition for the performance of the procedure for reappointment against the Plaintiff ( Daegu District Court 2014Kahap3064, hereinafter “instant provisional disposition”); (b) the said court commenced the procedure for review for reappointment against the Defendant until April 30, 2015, and completed the said procedure for review until June 30, 2015. If the Plaintiff fails to initiate the procedure for review by April 30, 2015, the Plaintiff did not complete the procedure for review from May 1, 2015 to June 30, 2015; and (c) did not complete the procedure for review from July 1, 2015 to June 30, 2015 to the date the aforementioned procedure for review is completed; and (d) the Plaintiff and the Defendant did not make a settlement recommendation to the Defendant as it did not make a settlement recommendation to the Plaintiff and the Defendant.

2) On June 23, 2017, the Defendant: (a) filed an application for the collection order of KRW 200,500,000 from December 17, 2015 with the title of execution for the instant decision to recommend reconciliation; (b) filed an application for the seizure and collection order of the Plaintiff’s deposit claims against the Plaintiff’s deposit claims ( Daegu District Court 2017TTB 9239); (c) on June 27, 2017, the said court issued the seizure and collection order of the said claim to the effect that the Defendant’s above application was the same as the Defendant; and (d) on June 29, 2017, the said order of seizure and collection was served on D Co., Ltd., Ltd., the garnishee, the third obligor, and thereafter, on June 30, 2017, the Defendant collected KRW 200,500,000 from D Co., Ltd. based on the above collection order, and reported the said fact to the said court on July 6, 2017.

【Fact-finding without a dispute over the grounds for recognition, Gap evidence 1 through 3, Eul evidence 2, 3, 8, and 12, and the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiff

The plaintiff started and completed the procedure of review for reappointment of the defendant within the deadline prescribed in the decision of recommending reconciliation of this case. Compulsory execution according to the decision of recommending reconciliation of this case shall not be permitted, and the defendant is liable to return the money seized and collected accordingly.

B. Since the Defendant’s non-performance of compulsory execution in the lawsuit of this case was terminated due to the collection by the Defendant, it is inappropriate to have a legal interest in the lawsuit. Meanwhile, the Plaintiff failed to implement the “legal procedure for review of reappointment” as stipulated in the decision of recommending reconciliation in this case. Thus, it is justifiable to seize and collect the Plaintiff’s claim equivalent to indirect compulsory performance with the title of execution of the decision of recommending reconciliation in this case.

3. Determination

A. Determination on the part on the non-permission of compulsory execution

After compulsory execution based on executive titles has been completed as a whole, there is no benefit to seek denial of such compulsory execution by an action of demurrer against a claim (see, e.g., Supreme Court Decision 96Da52489, Apr. 25, 1997).

In light of the above facts, compulsory execution based on the ruling of recommending reconciliation in this case had already been completed by the defendant's collection report around July 6, 2017, which was before the closing of argument in this case, and as such, there is no benefit of lawsuit seeking non-permission of compulsory execution with the objection of claim after compulsory execution based on the ruling of recommending reconciliation in this case has been completed. Accordingly, the part seeking non-permission of compulsory execution among the lawsuit in this case by the plaintiff is unlawful.

B. Determination on the claim for restitution of unjust enrichment

1) Facts of recognition

If Gap evidence Nos. 4 to 11 is added to the testimony of witness E, the following facts are recognized:

① On March 30, 2015, the Plaintiff’s teachers’ personnel committee set the period of review for reappointment to the Defendant as six months from August 29, 2011 to February 29, 2012. In accordance with the Regulations on the Evaluation of Teachers’ Status on March 1, 2010, the criteria for examination against the Defendant were 20 points in the educational business (160/8), 37.5 points in the research business (30/8), 20 points in the research business (160/8), and 20 points in the research business (160/8), taking into account the criteria for reappointment of assistant professors who worked for the last six years (240/12), and the criteria for examination against the Defendant were determined as 20 points in the educational business (240/12), 50 points in the research business (20/210) and 201 points in the research business (20/210).

② On April 7, 2015, the Chairperson of the Plaintiff’s Teachers’ Personnel Committee notified the Defendant of the foregoing criteria for review of reappointment. On March 1, 2010, the Defendant informed the Defendant of the foregoing criteria for review of reappointment. On March 1, 2015, the Plaintiff notified the Defendant of the materials for review of reappointment by April 23, 2015, by selecting one of the Regulations on Faculty Job Round and the amended Regulations on Faculty Job Round on March 1, 2015.

③ On April 27, 2015, the Plaintiff’s teachers’ personnel committee notified the Defendant that “In the event there was an objection to the results of the review on May 12, 2015, the Plaintiff did not fall under international academic papers, domestic academic papers, or other academic papers as stipulated in the Teachers’ Personnel Committee Regulations, and thus, he/she was re-appointed below the standard points for research performance.” However, the Defendant did not appear on the above date and did not appear on the above date.

④ On May 14, 2015, the Plaintiff’s Teachers’ Personnel Committee issued a certificate of content that the Defendant would not vindicate the research products. Accordingly, the Defendant, like the decision of April 27, 2015, decided that the Defendant was dismissed from reappointment as of April 27, 2015, and notified the Defendant on May 15, 201, that the Defendant was dismissed from reappointment due to the lack of research products (hereinafter “the procedure for the examination of the Plaintiff’s series of procedures for the examination of reappointment against the Defendant,” and “the notification of the revocation of reappointment” was called the “the rejection of reappointment”).

2) Determination

According to the above facts of recognition, the plaintiff started the procedure for review of reappointment by opening a teachers' personnel committee and notifying the defendant thereof, and it appears that the plaintiff implemented the procedure for review of reappointment within the period specified in the decision of recommendation for reconciliation of this case, such as giving the defendant an opportunity to state his opinion, and completing the procedure for review of reappointment by taking measures for refusal of reappointment against the defendant.

However, in light of the following facts or circumstances acknowledged by adding the whole purport of the pleadings to the evidence Nos. 2, 8, and 12, and the decision of the Appeal Committee for Teachers on the Procedure for Review of Reappointment and the Measures for Refusal of Reappointment, which may be known from the facts revealed in the above facts, and the conclusion of the administrative litigation thereon and the result of litigation thereon, it is reasonable to deem that the procedure for review of reappointment prescribed in the Reconciliation Recommendation does not refer to the commencement of formal and effective procedure, not to the commencement and completion of the procedure. Thus, the illegal procedure for review of reappointment does not constitute the procedure for review of reappointment prescribed in the Reconciliation Recommendation Decision. Therefore, it is difficult to deem that the procedure for review of re-employment does not fall under the procedure for review of reappointment prescribed in the Reconciliation Recommendation Decision. Accordingly, the defendant has the authority to seize and collect claims owned by the plaintiff in the amount of indirect forced payment amounting to KRW 200,500,000 with the title of title. The plaintiff's assertion in this part is without merit.

① The Plaintiff took three times prior to the instant measure to refuse reappointment, and each of the above measures to refuse reappointment was deemed illegal on the ground that the Defendant did not proceed with adequate procedures for review of reappointment in an appeal or administrative litigation requested by the Defendant. In relation to the third measure to refuse reappointment, the Plaintiff appears to have been well aware of the illegality in any part of the procedures for review of reappointment against the Defendant over several times in the past. In administrative litigation (Seoul Administrative Court Decision 2014Guhap50866), the above court infringed the Defendant’s right to receive fair review of reappointment by deeming the Defendant to be the period of review of reappointment as the period of time when the Defendant did not actually work, and Article 19(1) of the Regulations on the Evaluation of Teachers’ Duties, which was applied at the time of the above review period, was found to have been unlawful. In light of the fact that Article 19(1) of the said Regulations requires an assistant professor whose term of appointment expires, 160 points of education, 300 points of research work, 160 points of study, 100 points of study were excessively unfavorable to the Defendant.

③ Accordingly, the Defendant asserted that the Plaintiff had the right to undergo an examination of reappointment based on reasonable criteria, and filed an application for provisional disposition of this case, claiming that the Plaintiff failed to implement the procedures for the examination of reappointment. In addition, the said judgment became final and conclusive on March 12, 2015, prior to the commencement of the procedures for the examination of reappointment according to the decision on the recommendation for reconciliation of this case.

④ Therefore, in line with the purport of the above judgment, the Plaintiff appears to have been able to proceed with the instant review procedure by formulating a relative review criteria taking into account the circumstances that the Defendant was reinstated on August 29, 201, and was unable to work outside six months due to his/her reinstatement. Nevertheless, the Plaintiff adopted the research-based review criteria that reduced the period of review and the research-based review criteria that limited only the research-based assessment points.

⑤ The research guidelines applicable to the Plaintiff’s procedures for review of reappointment, which are determined by the Plaintiff’s Personnel Committee of Teachers, are 37.5 points (the faculty member evaluation rules of March 1, 2010) or 50 points (the faculty member evaluation rules of March 1, 2015). At least, the Defendant should have published a thesis at least in the academic journal (50 points) published at a nationwide level from August 29, 201 to February 29, 2012. However, the above research guidelines are satisfied. However, since the Defendant had a considerable time to publish a thesis in the academic journal (50 points) other than the time necessary for preparing the thesis, it was difficult for the Defendant to have been aware that it had not been recognized as a professor by the Plaintiff’s unlawful first rejection of reappointment, and thus, it seems that the Defendant did not actually endeavor to publish the thesis to the Defendant on August 29, 2011.

(6) In the review of an appeal against the Defendant seeking revocation, etc. of the measure to refuse reappointment of the instant case, the Private School Committee rendered a decision to accept the Defendant’s appeal on the ground that “the procedure to review the reappointment of the instant case cannot be deemed to be a fair review for objective grounds prescribed in Article 53-2(7) of the Private School Act.” In an administrative litigation (Seoul Administrative Court 2015Guhap76841) seeking revocation of the said decision, etc. brought by the Plaintiff against the Appeal Commission for Teachers, the said court determined that the measure to refuse reappointment of the instant case was unlawful on the ground that “the criteria for review applied by the Plaintiff to the Defendant at the time of the review procedure for reappointment cannot be deemed as an objective criteria that could have been predicted, and it is difficult to view that the rejection measure

4. Conclusion

Therefore, the part of the lawsuit of this case seeking the non-permission of compulsory execution is unlawful, and thus, the remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, highest judge;

Judges Lee Sung-sung

Judge Use-Appellee