(영문) 대법원 2021.2.10. 선고 2015다254231 판결

The part of the lower judgment against the Plaintiffs regarding property damage is reversed, and that part of the case is remanded to the Seoul High Court.

The plaintiffs' remaining appeals and defendant 1's appeals are dismissed, respectively.

The costs of appeal between the Plaintiffs and Defendant 2 are assessed against the Plaintiffs.

Reasons

The grounds of appeal are examined.

1. As to the grounds of appeal by Defendant 1 (hereinafter referred to as “Defendant corporation”), the lower court, on the grounds as indicated in its reasoning, determined that the instant disposition rejecting the reappointment of the Plaintiffs was null and void by abusing discretion, since the criteria for review of reappointment are not fully prepared, and some standards lose rationality.

In light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal principles regarding the terms and conditions of reappointment of private school teachers, the evaluation standards thereof, the discretionary examination of the evaluation standards for the reappointment of private school teachers, and the relief standards for private school teachers excluded from the examination for reappointment, as otherwise alleged in the grounds of

2. Regarding the plaintiffs' grounds of appeal

A. As to the claim for property damage

1) Even if a decision to refuse reappointment of a school foundation for fixed-term faculty member is deemed to have deviates from or abused discretion and its judicial effect is denied, in order to hold the school foundation liable for property damage on the ground that such decision constitutes tort, the refusal of reappointment should be recognized. For this purpose, the school foundation’s general standard should be deemed to have lost objective legitimacy of the decision to refuse reappointment. Whether the decision to refuse reappointment has lost objective legitimacy should be determined based on 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 ground for refusal of reappointment, the existence or degree of the relevant teacher’s explanation in the procedure of examination of reappointment, the contents thereof, and the whole progress of examination of reappointment, and the existence of substantial grounds for refusal of reappointment, other than the grounds for refusal of reappointment, should be determined by the determination of whether there is a substantial reason for the relevant school foundation to be liable for property damage to the university. In such case, where a school foundation’s tort is recognized through such determination, the relevant school foundation could have been re-appointed at a private university without such unlawful act.

2) Meanwhile, the first sentence of Article 53-2(7) of the Private School Act provides that, in deliberating on whether a faculty member is reappointed pursuant to Article 53-2(6) of the same Act, the grounds prescribed by the school regulations should be based on objective grounds such as “student education”, “matters relating to academic research, and student guidance,” and “matters relating to student guidance.” In full view of the following: (a) developments leading up to the amendment of the regulations related to the Private School Act including the above provisions; (b) the legal nature of the university and structure of deliberation on the reappointment within the university under the Private School Act; (c) ex post facto remedy procedure for decision to refuse reappointment and the scope of judicial review; and (d) the purport of Article 53-2(7) of the Private School Act provides that the grounds for deliberation on reappointment under the first sentence of Article 53-2(7) shall be based on objective grounds prescribed by the school regulations, not on the person who has the authority to appoint, but on the matters regarding student education; and (d) whether the relevant faculty member provided predictability of examination methods after the ex post facto determination shall be made in advance 1310.

3) Examining the following circumstances revealed by the reasoning of the lower judgment and the record in light of the legal doctrine as seen earlier, it can be deemed that the Defendant corporation’s refusal to re-appoint the Plaintiffs would lose objective legitimacy by failing to perform an objective duty of care in light of the general university’s standard. It is reasonable to deem that the act of the Defendant corporation constitutes a tort against the Plaintiffs.

A) Article 25 of the Regulations on the Personnel Management of Teaching Staff of △△ University established and operated by Defendant Corporation provides for the terms of reappointment for the faculty members under its jurisdiction. However, with respect to contractual faculty members, such as the Plaintiffs, the said contractual faculty members shall comply with the terms and conditions of obligation stipulated in the individual employment agreement, without mentioning the detailed criteria

B) From March 2005, the Plaintiffs drafted an agreement on teacher appointment with △△ University every year from March 2005, which was the first time of appointment, and were reappointed on the condition that at least 150% of theses be published in domestic and foreign famous academic areas for one year during the term of the contract, and that at least 54 points in the research field and at least 85 points in total be acquired in the evaluation of achievements (research-oriented model) conducted by △△ University. This condition is that the terms of appointment of assistant professors, who were appointed before December 31, 201, set forth in Article 25 of the Regulations on the Personnel Management of △△△ University, should be more than two times the research results and that at least 70 points in research performance should be acquired for three years during the term of the contract, and the performance evaluation score is higher than 15 points.

C) The Regulations on the Business Evaluation of △△ University sets out 20 points in the field of education, 60 points in the field of research, and 20 points in the field of service, 100 points in total, and 100 points in the case of additional points. In this case, referring to 10% of research performance, referring to 1/2 of basic research performance, and 1/4 of basic research performance up to 300% of research performance, referring to 1/300 of research performance as 1/4 of basic research score, referring to 1/7 of research performance in the relevant portion of domestic art art gallery, referring to 10% of which are assigned to 20th class or higher in the research field without exception, and 20th or higher points in the research field of which are assigned from 207 to 1/7th or higher in the field of domestic art exhibition, respectively, referring to 20 years or more in the field of international art exhibition, referring to 20% or more in the case of domestic art gallery.

D) In the field of service in the evaluation of achievements, the points are calculated by adding or adding the points according to separate items to the basic points of 20 points. Among them, the basic points are composed of cooperation in the operation of departments and majors (2 points), cooperation in the operation of colleges and universities (5 points), school contributions, participation, and service loyalty (13 points), and there is no objective and detailed criteria for evaluation so that the evaluation is not subjective, and it is difficult for the teacher to predict whether to receive points in any criteria and methods. In addition, in relation to the "school that accounts for the largest portion in the service field," the "evaluation table" claimed by the defendant corporation as the basis of the evaluation, which states that the defendant corporation was aware or disclosed of it in advance to the plaintiffs, as well as that it is not confirmed that the circumstances such as the "number of working days" and the "examination supervision" are mainly stated, and the evaluation of the service area is not difficult to acquire points as long as the teacher falls under additional points.

E) It is difficult for teachers to acquire high points in the evaluation of their achievements due to the rules on the differential evaluation of research performance or the method of evaluation of their service field, etc. As such, compared with those of those of those of those appointed before January 1, 2002, at least two times the research results for reappointment were higher than 15 points, and the performance evaluation points were higher than 15 points, etc., a large number of number of teaching staff have come to fall short of the standards for reappointment each year. In the case of 72 Korean teaching staff who applied for reappointment in 2013, 21 (29.2%) including the Plaintiffs, and 40 (54.1%) in the case of 74 foreign teaching staff members, 74 points below the standards for reappointment (Plaintiff 1 received 83.78 points in the evaluation of their achievements including 5.88 points in the research score and 66.90 points in the evaluation of their achievements, including the research score 34.90 points).

F) From among 21 domestic teachers who fall short of the standards for reappointment, the teachers’ personnel committee of Defendant Corporation was assessed for the first year after new appointment, on the ground that the faculty members of the nursing department have contributed to the development of the school, on the ground that the faculty members in charge of assigned positions, such as the dean, have failed to prepare for evaluation of their achievements or passed the total standards, but at the same time, they have made the maximum efforts for research on the publication of a number of thesiss, etc., 14 additional 14 teachers were included in the subject of reappointment. As a result, the board of directors of Defendant Corporation participated in the project team for the improvement of the teachers’ reputation system operated by the university. The board of directors of Defendant Corporation decided to re-appoint three of the 7 teachers recommended to be reappointed from among the 7 teachers recommended to be reappointed, and the Plaintiffs, including the Plaintiffs, were found to have been dismissed in the course of 20 years and 414 years from the date they were reappointed.

G) Ultimately, in light of the lack of objectivity and rationality, the Defendant corporation did not exclude certain persons who fall short of the qualifications through the procedures for re-election as in ordinary cases, but did not exclude them from the procedures for the examination of reappointment. In light of the research or education of the pertinent university, many teachers were selected from among those who fall short of the standards by way of remedy or new recruitment. However, the Defendant corporation did not set any content or principle in advance regarding the criteria for the selection of those who fall short of the standards. This is difficult to recognize legitimacy as being contrary to the provisions of the first sentence of Article 53-2(7) of the Private School Act and its purport of legislation, which provides that the selection of those who fall short of the standards for the examination of reappointment shall be made based on the selection of those who fall short of the standards for the examination of reappointment from among those who fall short of the standards for the examination of teachers, so it is difficult for the Defendant corporation to reasonably determine whether to be reappointed from among those who participated in the project team operated by the relevant university due to such reasons as the selection or activities of those who were not reasonably justified.

H) Meanwhile, even before 2013, there were many number of faculty members who failed to meet the standards for reappointment, but have been relieved of all the faculty members who failed to meet the standards, and there were no cases of refusing reappointment on the ground that the number of faculty members failed to meet the standards for reappointment prior to the disposition of refusal to reappointment of the instant case. The Plaintiffs also appeared to have been reappointed on several occasions, but continued to be reappointed even though their achievements evaluation points fall short of the standards

4) As can be seen, it is reasonable to view that Defendant corporation’s act of rejecting the reappointment of this case against the Plaintiffs, while taking de facto procedures for examining the reappointment in a way that relieves or employs a large number of persons falling short of the standards based on arbitrary criteria, to the extent that it is difficult for many teachers to undergo a strict examination of reappointment due to lack of objectivity and rationality, would lose its objective legitimacy.

Nevertheless, the lower court denied the Defendant corporation’s tort liability, which concluded that the instant disposition rejecting reappointment was difficult to be deemed to have lost objective legitimacy to the extent that it should be liable for damages to the Defendant corporation. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of tort caused by a school foundation’s decision rejecting reappointment. The allegation contained in the grounds of appeal on this point has merit.

B. Regarding the claim of consolation money

1) In order to claim consolation money on the ground that the teacher of a private university was suffering from property damage other than property damage due to the illegal refusal of reappointment, if the school foundation intentionally refused reappointment on the ground of another name under the intention to find the relevant teacher in the university or college even though there is no reason to refuse reappointment, or if it objectively apparent that the fact, which was the ground for refusal of reappointment, does not constitute grounds for examination of reappointment or cannot constitute grounds for refusal of reappointment under the personnel regulations, etc., or is objectively apparent and paid attention, such circumstance can be easily identified, but it should be obvious that the abuse of discretion by the university on the examination of reappointment, such as refusal of reappointment, is not permissible under our sound social norms or social norms (see Supreme Court Decision 2007Da42433, Jul. 29, 2010).

2) The lower court rejected the Plaintiffs’ claim for consolation money on the ground that there is insufficient evidence to acknowledge that the Defendants intentionally refused to resign the Plaintiffs under the intent to find the Plaintiffs in a university or college, or committed tort, such as impairing the honor of the Plaintiffs by improper means, impairing the teaching council’s activities, etc.

Examining the aforementioned legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding consolation money, defamation and insult, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

3. Conclusion

Therefore, without examining the remaining grounds of appeal by the plaintiffs as to the conjunctive claim

The part of the lower judgment against the Plaintiffs regarding property damage is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining appeals by the Plaintiffs and the appeal by Defendant Corporation are dismissed, and the costs of appeal between the Plaintiffs and Defendant 2 are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench