Plaintiff (Ynam Law Firm, Attorneys White-il et al., Counsel for plaintiff-appellant)

School Foundation Name University (Attorney Kim Hong-won, Counsel for the plaintiff-appellant)

November 18, 2010

Daegu District Court Decision 2008Gahap13153 Decided August 19, 2009

1. Of the judgment of the court of first instance, the part against the plaintiff corresponding to the subsequent order of payment shall be revoked.

The Defendant, as the Plaintiff

(a) pay 352,309,179 won and the interest thereon at each rate of 5% per annum from October 22, 2010 to December 2, 2010 and 20% per annum from the following day to the date of full payment;

B. From October 22, 2010 to the date when the Plaintiff dies or is reappointed to the professor of ○ University of the name of the Defendant’s operation or the date when the Defendant reaches the retirement age set by the Defendant, the amount of money calculated at the rate of KRW 62,603,940 per annum from the date when the Plaintiff reaches the first.

2. The plaintiff's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be divided into two parts, one of which shall be borne by the plaintiff, and the remainder by the defendant respectively.

4. The provisional execution as referred to in paragraph (1) may be effected.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff the amount of KRW 601,629,169 as well as the amount calculated by the rate of 20% per annum from the day following the delivery of the copy of the claim and the application for correction of cause as of October 19, 2010 to the day of complete payment. From November 11, 2010 to the day when the plaintiff is reinstated to the retirement age guarantee professor at the ○ University at the ○ University affiliated with the defendant, the amount of money calculated by the rate of KRW 8,025,466 per month shall be paid to the plaintiff (the plaintiff was corrected as above at the trial).

1. Basic facts

The following facts may be acknowledged if there is no dispute between the parties, or if Gap evidence Nos. 1 through 4, evidence No. 5-1, 2, 3, Gap evidence No. 8, 10, Eul evidence No. 1, 2, 3, and 5 are collected in the whole purport of the pleadings.

A. On July 1, 1982, the Plaintiff was newly appointed as an associate professor at the ○ University, which was operated by the Defendant, and was promoted to the associate professor at the ○ University on October 1, 1984. On October 1, 1988, the term of office of the Plaintiff was set at ten years and served as a professor at the ○ University.

B. On January 20, 199, the Defendant held a review committee for appointment of teachers whose retirement age is guaranteed and examined the proposal for appointment of teachers whose retirement age is guaranteed to the Plaintiff. The committee decided that the Plaintiff is disqualified.

C. On January 21, 199, the Defendant issued a notice to the Plaintiff that “the Plaintiff’s contract for the appointment of teaching staff as of October 1, 198 shall expire on February 28, 1999” (hereinafter “instant disposition for refusal of reappointment”) upon the date when the Plaintiff’s motion for dismissal was passed on the grounds of the expiration of the contract with the Plaintiff, which was held on February 2, 199.

D. Article 24 of the Regulations on the Personnel Management of Teachers established by the Defendant provides that “The appointment of teachers shall be made by the head of the school affairs division via the head of the department to which he/she belongs,” and that “The Committee for the Review of Appointment of Teachers with the retirement age shall examine whether the results of evaluation of achievements under the Regulations on the Evaluation of Teachers’ Duties of the relevant teachers meet the retirement age standards (Paragraph 2).” Article 25(5) of the said Regulations provides that “The president shall request the relevant board of directors of a corporation to appoint the retirement age (Paragraph 3).” Article 25(5) of the said Regulations provides that “The teachers with the retirement age guarantee shall have a doctor’s degree, but if the teachers with no doctor’s degree, the cumulative recognized research achievement shall have at least 1,00 points, and one or more achievements among the following subparagraphs shall be met.” However, the said provision provides that “The International Professional Academic Science (Classification 221), 200 points (Classification 2431), 214 or 21415 academic classification code”

Meanwhile, Article 23 (Enforcement on July 1, 1998) (b) of the Addenda to the above personnel regulations provides that "a teacher who is employed as a professor as of the enforcement date may be employed at the time when his employment period expires, and Article 22 of the Addenda to the above personnel regulations shall apply mutatis mutandis to the examination criteria." Article 22 (Enforcement on April 3, 1998) of the Addenda to the above personnel regulations provides that "In order for a professor under a contract with a fixed-term teacher as of April 12, 1997 to receive retirement age at the time of more than five years after his promotion, the deliberation point and the comprehensive deliberation point for each field of his achievements shall meet the requirements of 450 points for educational hours, 250 points for salary business ordinary, 1,00 points for comprehensive deliberation, and 1,00 points for comprehensive deliberation."

E. At the time of the examination for appointment of retirement age, the Plaintiff received a total of 1,775 points, including 600 points for the results of teacher job performance evaluation, 840 points for research, and 335 points for class work, and met all the deliberation points and minimum comprehensive deliberation points for each area of achievements stipulated in Article 22 of the Addenda to the above personnel management regulations.

F. On April 26, 1999, the Plaintiff filed a claim against the Defendant’s teachers’ disciplinary committee for the revocation of the disposition of the dismissal of professors, but was dismissed. The instant claim against the Defendant for the revocation of the disposition of the dismissal of professors was asserted to be null and void, and the Defendant filed a lawsuit for the confirmation of the status of professors (Tgu District Court 99Kahap19999), but was sentenced to the dismissal ruling on August 1, 200. The judgment became final and conclusive on September 19, 201, by both the Plaintiff’s appeal and appeal.

G. Upon enactment on July 13, 2005 by the Special Act on the Relief of Persons Disqualified from the Appointment System for University Faculty Members (hereinafter “Special Act”), the Plaintiff filed a petition for re-examination against the Defendant (hereinafter “Special Committee”) on March 6, 2006 for re-examination on the ground that the instant refusal to re-election against the Plaintiff was unjustifiable, and the written petition was served on the Defendant on the 9th day of that month.

H. On June 7, 2006, the Special Committee rendered a decision to revoke the disposition rejecting the reappointment of this case on the ground that it cannot be deemed reasonable and fair in light of the following: (a) although the Plaintiff satisfied the criteria for the review of the retirement age, the Special Committee determined the Plaintiff as disqualified for the appointment of the retirement age without any objective reason and ground without any provision on the assessment of teachers’ qualifications; and (b) the Plaintiff’s opposition to the appointment of the president of the KGG would have influenced the Plaintiff; and (c) there is no explanation and evidence to be acceptable on the specific grounds and grounds for the decision made by the Committee for the Review of the Appointment of Teachers with the KGG to be disqualified for the appointment of the Plaintiff.

I. Accordingly, on May 30, 2007, the defendant filed a lawsuit seeking revocation of the decision (Seoul Administrative Court 2006Guhap27380), and the Seoul Administrative Court rendered a judgment dismissing the defendant's claim of the defendant (the plaintiff of this case) on the ground that "the refusal of reappointment against the plaintiff was made with the intent to teach a professor critically in the board of directors and the operation of the school, not due to the plaintiff's strong attitude and the injury to the dignity as a professor," and it can be deemed that the refusal of reappointment against the plaintiff was made with the intent to teach a professor critically in the operation of the school, not due to the plaintiff's strong attitude and the injury to the dignity as a professor, and thus, the decision became final and conclusive on February 28, 2008."

(j) Meanwhile, the Ministry of Education was audited against the Defendant from December 13, 199 to December 22 of the same year. However, the result of the audit pointed out that it is improper to examine the Plaintiff’s appointment of teachers and the appointment of retirement age for the Plaintiff, etc., and thus, the Defendant’s measures are ordered to make reasonable and fair examination standards for new appointment and appointment of retirement age, and measures to ensure transparency and fairness in the process of the examination are prepared. In particular, even if the Plaintiff received 1,775 points at around 1,00 points necessary for the appointment of retirement age, the president excluded the Plaintiff from the appointment of retirement age arbitrarily.

2. Occurrence of liability for damages;

A. Legal doctrine (see Supreme Court Decision 2007Da42433 decided July 29, 2010)

(1) Even if a decision to refuse 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, in order for the school foundation to be held liable for property damage on the ground that such decision constitutes tort, the refusal of reappointment shall be recognized as attributable to the intention or negligence of the school foundation. For this purpose, it should be determined based on whether the school foundation has a substantial reason to be held liable for damages, taking into account all the circumstances, including the content and nature of the ground for refusal of reappointment, the degree of contribution of the relevant teacher in the process of examination of reappointment, the degree of the reason for refusal of reappointment, the existence or degree of the relevant teacher’s explanation in the procedure of examination of reappointment, the existence of the reason for refusal of reappointment, the contents thereof, and the whole progress of the examination of reappointment, etc.

She and, where it is recognized that a school juristic person's tort has been committed through such judgment, the faculty members of the private university who could have been reappointed if they had received a lawful review of reappointment may claim compensation for property damage equivalent to wages for the period during which they would have been appointed and held as teachers if they had not committed such an illegal act.

The former Private School Act, before the amendment of the Private School Act (amended by Act No. 7352 of Jan. 27, 2005), does not have any provision regarding the procedure for refusing reappointment and the procedure for remedy after the appointment of the faculty of a private university. The Constitutional Court's ruling of inconsistency with the Constitution (the Constitutional Court Order 200Hun-Ba26, Feb. 27, 2003; 2002Hun-Ba14, 32, Dec. 18, 2003) or the Supreme Court en banc Decision 200Du7735, Apr. 22, 2004, which held that the examination of the amendment of the Private School Act cannot be carried out on the grounds that there is no special circumstance that the amendment of the Private School Act, such as the provision regarding the appointment of a university or a private university by the fixed-term recruitment system, or that the amendment of the Private School Act does not have any legal authority's duty of inconsistency or duty of remedy before the amendment of the Private School Act.

In addition, as long as the existence of the right to request the review of reappointment is confirmed by a judicial institution, there is room for liability for damages to the relevant teacher whose effect of the decision of refusal of reappointment is denied due to procedural or substantive reasons, unless the school juristic person resumess the procedures for review of reappointment without special circumstances. However, the procedure for reappointment normally takes place in the order of determination of application for reappointment, examination of reappointment, and determination of refusal of reappointment, and is based on the premise of the intention to apply for reappointment. If a decision of refusal of reappointment has already been made in the examination of reappointment and retirement has already been taken due to the expiration of the term of appointment, the procedure for reappointment is completed in accordance with the general concept of the parties. Therefore, even if the decision of refusal of reappointment is denied due to procedural or substantive reasons and the school juristic person continues to have the duty to review reappointment, if the violation of the duty to request the review of reappointment continues to exist in the school juristic person, the school juristic person’s refusal to request the review of reappointment should first be confirmed if it is confirmed that there is the right to request the review of reappointment.

(v) Furthermore, in order for a school juristic person to be held liable for property damage on the ground that the school juristic person did not resume the procedure for review of reappointment, as seen earlier, regardless of the fact that such an applicant for reappointment had been confirmed, the school juristic person’s intention or negligence must be recognized as well. As such, the school juristic person’s failure to resume the procedure for examination of reappointment should be determined based on whether the school juristic person’s failure to resume the procedure for examination of reappointment led to the extent that the school juristic person lost objective legitimacy by failing to perform objective duty of care when considering all such circumstances as the content and nature of grounds for refusal of reappointment in the past, the degree of contribution of the relevant school juristic person in the event of such refusal, the degree of explanation or degree of the relevant school juristic person in the procedure for examination of reappointment, the existence and content of the relevant school juristic person’s refusal of reappointment in addition to the grounds for refusal of reappointment specified, and the whole progress of the examination of reappointment as a standard.

⑹ 한편 사립대학 교원이 위법한 재임용거부로 인하여 재산적 손해 외에 별도의 정신적 고통을 받았음을 이유로 위자료를 청구하기 위해서는, 학교법인이 재임용을 거부할만한 사유가 전혀 없는데도 오로지 해당 교원을 대학에서 몰아내려는 의도 하에 고의로 다른 명목을 내세워서 재임용을 거부하였거나, 재임용거부의 이유로 된 어느 사실이 인사규정 등 소정의 재임용 여부의 심사사유에 해당되지 아니하거나 재임용거부사유로 삼을 수 없는 것임이 객관적으로 명백하고 또 조금만 주의를 기울이면 이와 같은 사정을 쉽게 알아볼 수 있는데도 그것을 이유로 재임용거부에 나아간 경우 등 재임용 여부 심사에 관한 대학의 재량권 남용이 우리의 건전한 사회통념이나 사회상규 상 용인될 수 없음이 분명한 경우이어야 한다.

B. Occurrence of liability for damages

(1) As to whether the Plaintiff filed an application for review of reappointment with the Defendant, the Plaintiff filed an application for review of reappointment with the Special Committee on March 6, 2006, on the grounds that the Special Act was enacted, and the Plaintiff filed an application for review of reappointment with the Defendant on March 6, 2006, on the grounds that the rejection of reappointment against the Defendant was unreasonable. The written application was served on the Defendant on March 9, 2006. As seen earlier, the Plaintiff’s application for review of reappointment against the Defendant was objectively confirmed on March 9, 2006, when the written application for review against the Defendant was served on the Defendant. Accordingly, the Defendant shall continue to have the obligation to review the Plaintiff’

In addition, according to the above legal principles, the defendant reappointed the plaintiff in spite of the plaintiff's application for reexamination, or the defendant's failure to conduct the review procedure for reappointment was deviates from and abused discretion, and the defendant's failure to resume the review procedure for reappointment despite the plaintiff's application for reexamination of reappointment was judged to be disqualified from the appointment of retirement age without any objective grounds and grounds despite the plaintiff's fulfillment of the criteria for review of retirement age. This can be seen to have been made at the board of directors and the board of directors, which are not due to the plaintiff's demotion and the injury to the professor's status, and the defendant's refusal to resume the review procedure for reappointment is deemed to have lost objective legitimacy. The defendant's failure to resume the review procedure for reappointment of the plaintiff in spite of the plaintiff's application for reexamination of reappointment is not justified in the decision of this case at the time of the plaintiff's rejection of reappointment. Thus, the defendant's rejection of reappointment is not considered to have been justified in the decision of this case at the time of the plaintiff's rejection of reappointment.

Article 22(1) of the former Review Regulations provides that “If a university’s discretionary power is exercised, a university’s discretionary power may not be abused in our sound social norms or social rules, it shall be deemed that a university’s discretionary power may not be accepted.” Thus, the Defendant is liable to compensate for not only property damage suffered by the Plaintiff, but also mental damage.

C. Limitation on liability

However, the plaintiff is deemed to have contributed to the disposition rejecting re-employment of this case, such as drinking while under the influence of alcohol or attending the Baduk, or failing to teach another professor or instructor, and distributing false inducements to criticize the defendant and the school. Considering these errors of the plaintiff, it is reasonable to view that the defendant's liability ratio exceeds 70%.

3. Scope of damages.

(a) Property damage;

(1) Loss equivalent to wages.

㈎ 위 인정사실에 의하면, 원고는 피고가 원고에 대하여 재임용을 위한 심사절차도 재개하지 아니한 채 재임용을 거부함으로 인하여 임금 상당의 재산적 손해를 입었다고 할 것인바, 갑 제11호증의 1, 2의 각 기재에 의하면, 원고와 유사한 위치에 있는 계명대학교 교원의 연봉은 2006년도에 최고 96,342,720원, 최저 81,637,440원, 2007년도에 최고 99,999,480원, 최저 84,627,600원, 2008년도에 최고 105,250,180원, 최저 86,247,960원, 2009년도에 최고 103,177,000원, 최저 89,434,200원인 사실을 인정할 수 있는바, 원고가 계명대학교 교원으로 재임용되었다면 적어도 위 연봉 중 최저액 이상의 임금을 받을 수 있었을 것으로 보이고, 위 연봉 최저액이 2006년부터 2009년까지 계속 상승하고 있었던 점에 비추어 2010년 이후의 연봉 최저액은 2009년도 연봉 최저액 보다 적지 않을 것으로 보인다.

㈏ 이에 대하여 피고는, 계명대학교 교원의 연봉에 포함되어 있는 교재연구수당, 업무추진교통비, 의학연구비는 실제로 근무한 교원들에게만 지급되는 것이어서 원고에 대한 임금을 산정함에 있어 이를 공제하여야 한다고 주장하나 임금이란 사용자가 근로의 대가로 근로자에게 임금, 봉급, 그 밖에 어떠한 명칭으로든지 지급하는 일체의 금품을 말하므로( 근로기준법 제2조 제1항 제5호 ), 사용자에 의하여 근로의 대상으로 계속적·정기적으로 지급되는 금품이라면 그 명칭이나 그 지급근거에 구애받지 않고 이에 포함되는 것이고, 지급의무의 발생이 근로자의 특수하고 우연한 사정에 의하여 좌우되는 것이거나 업무를 수행함에 있어 소요되는 경비를 보전해 주는 실비변상적인 성격을 가지는 것은 임금에서 제외되어야 할 것인바, 을 제13호증의 기재에 의하면, 계명대학교 교원의 연봉에는 교재연구수당, 업무추진교통비, 의학연구비 등이 포함되어 있는 사실을 인정할 수 있으나 한편 위 증거에 의하면, 위 수당 등은 모두 교원들에게 계속적·정기적으로 지급되는 금품에 해당하고 근로자의 업무를 수행함에 있어 소요되는 경비를 보전해 주는 실비변상적인 성격을 가지는 것으로는 보이지 아니하므로, 피고의 위 주장은 이유가 없다.

㈐ 따라서 원고는 원고가 구하는 2006. 3. 10.부터 2010. 10. 21.까지의 임금 상당액인 398,775,443원(= 81,637,440원 × 297일/365일 + 84,627,600원 + 86,247,960원 + 89,434,200원 + 89,434,200원 × 294일/365일, 원 미만 버림, 이하 같다.)의 손해를 입었다고 할 것이고 2010. 10. 22.부터 원고가 사망하거나 피고 운영의 계명대학교 ○○대학 교수로 재임용되는 날 또는 피고가 정한 정년에 해당하는 날 중 먼저 도달하는 날까지 임금 상당액인 연 89,434,200원의 비율로 계산한 돈에 상당한 손해를 입게 되었다고 할 것이다.

She retirement pay equivalent to the losses

㈎ 원고는 피고의 재임용거부로 인하여 원고가 2006. 3. 10. 재임용되어 정년이 되는 2011. 6. 30.까지의 근무기간에 해당하는 퇴직금 41,556,525원을 지급받지 못하게 되었으므로, 이로 인한 손해 31,965,279원 상당을 배상할 의무가 있다고 주장한다.

㈏ 살피건대, 근로자퇴직급여보장법 제8조 는 퇴직금제도를 설정하고자 하는 사용자는 계속근로기간 1년에 대하여 30일분 이상의 평균임금을 퇴직금으로 지급하도록 규정하고 있고, 피고의 교원인사규정(갑 제8호증)에 의하면, 피고가 운영하는 계명대학교 교원의 정년은 65세로 하고 정년으로 인한 퇴직의 시기는 정년이 되는 날이 속하는 학기의 최종일로 한다고 규정하고 있는바, 원고가 2006. 3. 10. 재임용되어 당심 변론종결일인 2010. 11. 18.까지 4년 254일 근무하였다면, 원고가 정년이 되는 2010. 8. 31.에 34,518,345원{= (89,434,200원 × 30일/365일) × (4년 + 254일/365일)}의 퇴직금을 지급받았을 것임에도 피고가 재임용을 거부하는 바람에 위 돈 상당액의 손해를 입었다고 할 것이다.

㈐ 따라서 원고가 입은 퇴직금 상당의 손해를 연 5%의 중간이자를 공제한 2010. 10. 21. 현재의 현가로 계산하면 33,094,814원{= 34,518,345원/(1 + 0.05 × 314일/365일)}이 된다.

㈑ 나아가 당심 변론 종결일 이후의 근무기간에 해당하는 퇴직금 상당의 손해에 관하여 보건대, 당심 변론 종결일 이후 원고가 사망하거나 피고가 원고를 재임용할 경우 원고는 더 이상 퇴직금 상당의 손해를 입게 되는 것이 아니므로, 당심 변론 종결일 이후에는 피고의 재임용거부로 인한 퇴직금 상당의 손해가 확정적으로 발생하였다고 보기 어려우므로, 그로 인한 손해배상을 구할 수는 없어 원고의 이 부분 주장은 이유가 없다.

B. Limitation on liability

(1) Loss: (1) Loss equivalent to wages + (398,775,443 won + Loss equivalent to retirement pay + 3,094,814 won) ¡¿ 0.7 = 302,309,179 won

Sheet future losses: considerable damages of 89,434,200 won ¡¿ 0.7 = 62,603,940 won

(c) Compensation money;

(1) As the defendant asserts that the plaintiff's claim for consolation money has expired by prescription, the plaintiff's claim for consolation money against the defendant shall be deemed to have been committed continuously because the defendant did not perform due procedures for reappointment despite the plaintiff's request for reexamination, and the damage shall also be continuously caused continuously. Accordingly, the plaintiff's claim for consolation money from March 9, 2006, which the plaintiff filed a lawsuit against the defendant seeking the payment of consolation money from April 6, 2009 to April 6, 2006, which was three years after birth from April 6, 2009, pursuant to Article 766 (1) of the Civil Code, the defendant's claim for consolation money from April 6, 2006, which became three years after the expiration of the extinctive prescription period, but since the plaintiff's claim for consolation money has not expired within the scope of recognition.

D. Furthermore, in full view of the circumstances revealed in the proceedings of the instant pleading, including the health team, the background and result of the disposition rejecting the reappointment of the instant case, and the subsequent circumstances, regarding the amount of consolation money due to the nonperformance of the procedures for reappointment after April 7, 2006, it is reasonable to determine the amount of consolation money to be paid by the Defendant to the Plaintiff as KRW 50 million.

4. Conclusion

Therefore, the defendant's damages for delay calculated at a rate of 352,309,179 won per annum from October 22, 2010 to the plaintiff (property damages 302,309,179 + consolation money + 50,000,000 won) and damages for delay calculated at a rate of 20% per annum from October 22, 2010 to December 2, 2010, which is the day following the delivery date of a copy of the application for correction of purport of claim and cause of cause as of October 19, 2010 to the date of delivery of a copy of the application for correction of cause, and it is reasonable to dispute the existence and scope of the defendant's obligation to pay the remainder of the plaintiff's damages for delay to the plaintiff from October 22, 2010 to the day of complete payment, and since there is no reason to dismiss the plaintiff's claim for cancellation and payment of the remaining amount of money within the limit of 62,940 won per annum.

Judges Lee Jong-dae (Presiding Judge)