(영문) 대구지방법원 2020.4.16.선고 2019가합207206 판결

1. It is confirmed that the disposition rejecting the reappointment made by the Defendant against the Plaintiff on June 27, 2019 by the Defendant against the Plaintiff is null and void. 2. From September 1, 2019 to the time the procedure for examining the reappointment of the Plaintiff is completed, the Defendant shall pay to the Plaintiff an amount calculated at the rate of KRW 3,985,00 per month.

3. The defendant shall implement procedures for examining the reappointment of the plaintiff to the plaintiff.

4. The plaintiff's remaining claims are dismissed.

5. Of the litigation costs, 1/5 of the litigants and the remainder shall be borne by the Defendant respectively.

6. Paragraph (2) may be provisionally executed.

Purport of claim

Order Nos. 1 through 3 and the defendant 20,000,000 won to the plaintiff and the part on June 27, 2019

ter 5% per annum and 12% per annum from the following day to the date of delivery of a copy of the complaint of this case

It shall pay the amount calculated at a percentage.

Reasons

1. Facts of recognition;

A. The defendant is an educational foundation that establishes and operates a university (hereinafter referred to as "the defendant university"). 2) The plaintiff was newly appointed as a full-time lecturer at the defendant university on March 1, 2002, and was reappointed on March 1, 2004 as a full-time lecturer at the defendant university. The plaintiff was promoted as an assistant professor on April 1, 2005, and was reappointed as an assistant professor on September 1, 2008, and was reappointed as an associate professor on April 1, 2009, and was reappointed as an associate professor on April 1, 2009, and was reappointed on September 1, 2014 and worked at the defendant university until August 31, 2019.

B. On April 8, 2019, Defendant 2 requested the Plaintiff to submit to the Plaintiff an application for review of reappointment and a teaching report, etc. On April 29, 2019, the Plaintiff submitted to the Defendant a written application for review of reappointment and a report on his achievements to the Defendant on April 29, 2019. (2) On June 13, 2019, the Personnel Committee of the Defendant’s University held a meeting with four teachers including the Plaintiff, on the agenda of the Plaintiff, including the four teachers, to be reappointed. After reviewing the data for each subject of review at the above meeting, the Plaintiff et al. failed to comply with the criteria for the appointment of the Plaintiff et al. to be reappointed, and the Plaintiff et al. failed to comply with the guidelines for the appointment of the Plaintiff et al. to be reappointed with the consent of all the members participating in the meeting, on the ground that the Plaintiff violated the guidelines for the appointment of the Plaintiff’s former faculty members on the ground that they violated the guidelines for the appointment of the Plaintiff.

C. Provisions regarding examination for reappointment of Defendant University

Part relating to reappointment among the articles of incorporation, teachers appointment rules, and teaching evaluation rules of the defendant university applicable to the plaintiff shall be as specified in attached Form.

[Grounds for Recognition] Facts without dispute, Gap evidence 1 through 6, Gap evidence 8-2, 3 through 6 (including Serial Nos. 1) and the purport of the whole pleadings

2. Determination on the claim for confirmation of invalidity of disposition rejecting reappointment

A. The allegations of the Parties

With respect to the Plaintiff’s rejection of re-elections in this case’s assertion that it is invalid as a disposition that deviatess from or abused the discretion on the review of re-election due to the lack of rationality and objectivity, the Defendant’s assertion that the rejection of re-elections in this case’s disposition is invalid, including the Plaintiff’s violation of the law on the appointment of a full-time professor, violation of the regulations on the appointment of a full-time teaching staff, violation of the regulations on the appointment of a full-time teaching staff, violation of the regulations on duties of a teaching staff, profit-making duties of a teaching staff, and violation of the prohibition of concurrent office, etc., and thus, the Defendant

B. Relevant legal principles

In a case where a teacher of a private university is appointed by the appointment system for the original term of a university and the term of appointment has expired after undergoing a fair examination based on reasonable standards on his/her ability and qualities as a teacher, barring special circumstances, and is entitled to request a fair examination on whether he/she is reappointed with reasonable standards, barring special circumstances. In a case where the appointing authority refuses to be reappointed on behalf of the teacher who filed an application for reappointment, he/she may be deemed null and void (see, e.g., Supreme Court Decision 207Da42433, Jul. 29, 2010), if there are no grounds for refusing reappointment, i.e., the objective grounds for refusing reappointment, i., the criteria for review of reappointment, or even if such grounds exist, to examine the eligibility by verifying his/her ability and qualities as a teacher, and thus, denying the validity of his/her private law based on reasonable standards is deemed to be lacking and reasonable in light of social norms (see, e.g., Supreme Court Decision 2007Da424333, Jul.

In light of the aforementioned facts and the legal principles as seen earlier, the grounds for the rejection of reappointment of the instant case are difficult to be deemed based on reasonable and objective criteria to verify the teacher’s ability and qualities.

Therefore, the disposition rejecting the reappointment of this case is null and void as it deviates from or abused discretionary power, and there are interests in its confirmation as long as the defendant is dissatisfied with it. 1) During the evaluation period of the plaintiff, the evaluation of the professor's position was conducted in 1,384.6, the research achievement 2,103.33, 971.9, 459.92, which is the minimum number of teaching achievement in 1,100, research achievement, 500, total 1,900, total 300, 1,900, which is 200, which is the case of the plaintiff's refusal of reappointment, the number of teachers' personnel committee of the defendant's college did not meet the plaintiff's reasonable opportunity to be reappointed from the 2nd evaluation period of the plaintiff's 1,38th evaluation period, which is the case of the plaintiff's refusal of reappointment, and it did not meet the plaintiff's reasonable opportunity to be reappointed from the 2nd evaluation period of the plaintiff's.

4) Next, Article 3 of the Regulations on Appointment of Teachers at the Defendant’s University provides that matters concerning the Plaintiff’s concurrent office and profit-making business shall be as follows:

Article 3 (Prohibition of Concurrent Offices of Teachers) (1) No teacher shall concurrently hold a position that receives remuneration from any institution other than this University: Provided, That where a non-profit institution is a non-profit institution, he/she may hold a concurrent office with the permission of the president: Provided, That the permission of the president shall be granted in advance only when it is inevitable for the exchange of instructors. (2) If a teacher intends to accept a position of the president, such as a commission, adviser, and executive member of another institution, as a teacher, he/she shall obtain the permission of the president in advance: Provided, That this shall not apply to the case where he/she is a executive of another academic organization.

The fact that the Plaintiff participated several times in the public performance hosted and supervised by the Plaintiff Company is recognized, but it is insufficient to view that the said Company constitutes a profit-making organization, or that the Plaintiff was in a position to receive remuneration from the said Company. Furthermore, the Plaintiff’s performance record was recorded in the Plaintiff’s research record (No. 4-4), and the Defendant’s University Faculty Personnel Committee did not have a problem despite the submission of the instant public performance record with regard to the above research performance record; 5) the major administrative assistant, which was not specified in the Defendant’s refusal of reappointment as the ground for the refusal of reappointment, are not specified in the Defendant’s refusal of reappointment. Moreover, according to the evidence Nos. 13 through 18, and No. 20, it is difficult to view that the Plaintiff was negligent in performing the above public performance with regard to the Plaintiff’s private music and administrative assistance in the Defendant University, and it is difficult to view that the Plaintiff was responsible for the above non-party O’s non-party 1’s non-party 1’s non-party 2.

A. Determination on the part of property damage

1) Even if a decision to refuse the reappointment of a school juristic person for the term of validity of the relevant legal doctrine is deemed to deviate from or abuse of discretionary power, and its judicial effect is denied, such decision to refuse the reappointment of the school juristic person is required to be recognized as arising from the dismissal of the school juristic person or negligence of the school juristic person in order to compensate for property damage on the ground that such decision constitutes tort. To this end, the determination of whether the appointment of the school juristic person has lost objective legitimacy by exercising objective duty of care should be limited to the extent that the decision to refuse the reappointment has been made. In such a case, the determination of whether the appointment of the school juristic person has lost objective legitimacy should be made based on the content and nature of the grounds for refusal of reappointment, the degree of contribution of the relevant teacher in the process of review of reappointment, the extent of such refusal, the existence and content of the grounds for refusal of reappointment, and the progress of the reappointment of the school juristic person in question, which would have been based on the overall examination of the qualifications for reappointment of the school juristic person in question, should be determined on a comprehensive basis of such determination.

2) Occurrence of damages liability

In full view of the details and details of the disposition rejecting the reappointment of this case, the appointment of faculty members of the Defendant University, and the regulations on the evaluation of teaching achievements, it is reasonable to view that the Defendant rendered a disposition rejecting the reappointment of this case, which was objectively disqualified due to the Defendant’s failure to perform objective duty of care in the course of examining the reappointment of the Plaintiff. Therefore, the Defendant is liable for damages incurred to the Plaintiff due to the Plaintiff’s refusal of reappointment, which is a tort, first of all, to examine whether the Plaintiff could have been reappointed if he had been duly reappointed, and at any time, he could have been employed.

The plaintiff met all the criteria for deliberation by achievements necessary for reappointment, and confirmed by the personnel committee of the faculty members of the defendant university, which recommended the appointment of the plaintiff to the chairperson of the defendant union on June 24, 2019, and the fact that the plaintiff was continuously reappointed since his appointment as a former instructor was viewed above. Thus, it is reasonable to view that the plaintiff could continue to maintain the status of the teacher after being reappointed to the defendant university if he had undergone a lawful examination for reappointment.

Therefore, the scope of the period during which the Plaintiff may claim damages shall be from September 1, 2019, the day following the expiration date of the previous term of employment, to the day the Defendant complete lawful procedures for review of reappointment with respect to the Plaintiff based on reasonable standards. By the closing date of the argument in this case, the Defendant did not dispute the validity of the disposition of refusal of reappointment against the Plaintiff and did not decide whether to re-appoint the Plaintiff. Thus, the Plaintiff need to claim the above money in advance.

B) Furthermore, considering the amount of benefits that the Plaintiff could have received during the above period, it is recognized that the Plaintiff received as benefits of KRW 3,985,00 each month from January 1, 2019 to June 2019 in accordance with the purport of the entire pleadings and the statement of evidence No. 7 and the purport of the whole pleadings, and thereafter, it is ratified that the amount of benefits thereafter would be equivalent to the above amount.

Therefore, Defendant has a duty to pay damages calculated at the rate of KRW 3,985,00 per month to the Plaintiff when completing the procedures for review of reappointment for the Plaintiff from September 1, 2019.

B. Determination on the part of mental damage

1) Relevant legal principles

In order for private university teachers to claim consolation money on the ground that they suffered mental pain other than property damage such as the first instance due to illegal refusal of reappointment, it shall be objectively clear that the fact that the school juristic person intentionally refuses to be reappointed under the intention to find out of the university without any grounds for refusing to be reappointed, or intentionally refuses to be reappointed on the ground that it does not fall under the grounds for reviewing whether to be reappointed, such as personnel regulations, etc., or cannot be taken as care of the refusal to be reappointed, or that such circumstance is easily recognizable if he paid attention to such fact, such as the case of refusal of reappointment, etc., even though it is obvious that the abuse of discretionary power of the university on the examination of reappointment cannot be permitted under our sound social norms and social norms (see, e.g., Supreme Court Decision 2007Da42433, Jul. 29, 2010).

2) Determination

The evidence submitted by the plaintiff alone is insufficient to conclude that the defendant intentionally refused to resign on the ground of another name as the intention to leave the plaintiff or that the ground for refusing to resign is an objective reason for which it is not possible to reject the reappointment. Furthermore, it is not sufficient to conclude that the rejection of reappointment of this case constitutes a case where it is obvious that the disposition of refusal to resign of this case constitutes a case where it is not acceptable under our sound social norms or social norms, and there is no other evidence to acknowledge this otherwise, and therefore, the plaintiff's assertion in this part is rejected.

4. Determination on the claim for the procedure for examining reappointment

Article 53 (6) of the Private School Act provides that "a person who has the authority to appoint who has received an application for deliberation on reappointment under paragraph (5) shall decide on whether to re-appoint the relevant teacher after deliberation by the teachers' personnel committee under Article 53-4 and notify the relevant teacher of the fact not later than two months prior to the expiration of the term of appointment." Article 39 (2) of the Defendant's Articles of incorporation provides that "a teacher, other than the president of a university, shall be appointed and dismissed by the president upon the recommendation of the president of a university after deliberation by the personnel committee of the teachers' personnel committee under Article 53-4." Article 22 of the Defendant's Rules on Appointment of Teachers shall provide that "a teacher, the term of appointment of which expires under Article 7, shall be reappointed by the president on the recommendation of the president after deliberation by the

As seen earlier, the rejection disposition of this case is null and void. Accordingly, the defendant is obligated to implement the review procedure for reappointment pursuant to the above provisions against the plaintiff's application for reappointment.

5. Conclusion

The plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed due to the lack of reasonable grounds. It is so decided as per Disposition.

Judges

Judges Lee Gyeong-tae

Judges Hong-hee

Judges Han Han-dae

Site of separate sheet

A person shall be appointed.

참조판례

-대법원 2010. 7. 29. 선고 2007다42433 판결

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