(영문) 대구지방법원 2012.9.5.선고 2012가합4392 판결

1. It is confirmed that the Defendant’s disposition rejecting the reappointment against the Plaintiff on February 29, 2012 against the Plaintiff is null and void. 2. A. The Defendant shall pay to the Plaintiff 8,386,886 won and the amount equivalent to 5% per annum from July 11, 2012 to September 5, 2012, and 20% per annum from the next day to the day of complete payment.

B. From April 1, 2012, the Defendant shall pay to the Plaintiff an amount equivalent to KRW 3,386,886 per month until the procedures for review of reappointment with the Plaintiff are implemented.

3. The plaintiff's remaining claims are dismissed.

4. One-eight of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

5. Paragraph 2 can be provisionally executed.

Listening to the Listening to the Gu;

Order Paragraph 1 and the defendant shall pay to the plaintiff 13,386,890 won with 20% interest per annum from the day after the day after the copy of the claim and the application for change of reason was served on July 26, 2012 to the day of complete payment, and the amount with 3,386,890 won per annum from April 1, 2012 to the day of full payment.

Reasons

1. Basic facts

A. Status of the parties

On March 1, 2002, the Plaintiff was appointed as a full-time lecturer belonging to the social welfare department of the pertinent university established and operated by the Defendant.

(b) Refusal of reappointment, filing administrative litigation, etc.;

1) On November 24, 2003, the Plaintiff was informed from the university of this case that the Plaintiff would be deemed to have no intention to file an application for re-contract without submitting research results, etc. necessary for re-contract, for the attendance at the American Public Health Academy and the invitation visit of private rollers or universities. On December 4, 2003, the Plaintiff returned from the university of this case to the university of this case on December 27, 2003, and submitted research results, etc. to the university of this case on December 11, 2003. However, the university of this case decided to refuse to renew the contract with the Plaintiff on December 30, 203, the board of directors held on December 11, 2003, which was held on December 30, 2004, and the Defendant rejected the contract with the Plaintiff on January 7, 2004 by the date of submitting research products, and the contract with the Plaintiff as a professor of this case on February 29, 2004.

3) On October 14, 2005, the Plaintiff requested the Ministry of Education and Human Resources Development to revoke the rejection of the said re-contract to the Special Committee on Appeal against Teachers (hereinafter “Special Committee on Appeal against Teachers”). However, on February 14, 2006, the Plaintiff received a decision of dismissal of request on February 14, 2006.

4) On May 2, 2006, the Plaintiff again filed a lawsuit seeking revocation of the above dismissal decision by the appeals review committee (Seoul Administrative Court 2006Guhap16410). On December 7, 2006, the above court rendered a judgment in favor of the Plaintiff to the effect that the above dismissal decision was unlawful in view of the fact that, if the Defendant had followed the appropriate re-contract review procedure against the Plaintiff, the applicant would have submitted sufficient research products to meet the minimum standard for the re-contract research. Although the appeals and appeals were filed by the appeals review committee, the appeal was dismissed on December 18, 2007 (Seoul High Court 2006Nu31923), and the appeal was dismissed on April 24, 2008 (Supreme Court 2008Du1535, Apr. 24, 2008).

1) On March 5, 2009, the Plaintiff filed a lawsuit against the Defendant seeking compensation for damages equivalent to wages or wages until the procedures for reappointment are implemented (Tgu District Court 2009Gahap2631). On January 13, 2010, the said court rendered a ruling of dismissal of the claim on the following grounds:

2) On February 5, 2010, the Plaintiff appealed (Tgu High Court 2010Na966), and the following mediation was established on June 28, 201 in the process of the lawsuit (hereinafter “instant mediation”).

1. The Defendant confirms that the Plaintiff is in the position of assistant professor of the University from March 1, 2004 to February 29, 2012.2. The Defendant shall pay the Plaintiff monthly salary of KRW 80 million to August 26, 2011 and monthly salary from March 3, 2011 to August 201: Provided, That the payment of salary from March 1, 2011 to February 1, 201 shall be based on the Plaintiff’s salary of professor of the University (Early Childhood Education) who is reported to the department of study as of April 1, 201, and the amount of tax imposed during the pertinent period shall be deducted. The Plaintiff shall confirm that the Plaintiff should be teaching professors of social welfare from March 1, 201 to August 26, 201, and the Defendant shall not assign the Plaintiff the remainder of the curriculum of research and development to the Plaintiff during the pertinent period from March 20, 2011 to August 21, 2019.

D. Disposition, etc. against the plaintiff's reinstatement and the defendant's refusal of reappointment

1) Upon the instant conciliation on August 17, 201, the Defendant notified the Plaintiff that he was reinstated as an assistant professor for a period from March 1, 2004 to February 29, 2012. Article 18 of the Regulations on the Personnel Management of Faculty Members of the University of this case provides that the term of an assistant professor newly appointed before February 28, 2002 is four years or the term of an assistant professor newly appointed thereafter shall be determined by a contract, and Article 33(1) provides that “The terms of appointment for a person subject to re-contract shall be equivalent to new appointment after March 1, 202.”

2) After that, the pertinent university: (a) deemed that the Plaintiff was in service only until February 29, 2012 and thereafter agreed to retire; and (b) on January 16, 2012, the board of directors held on February 9, 2012, dismissed the Plaintiff from office on the ground of the expiration of the term of appointment; and (c) the Defendant notified the Plaintiff on February 29, 2012 that the term of appointment expires (hereinafter “instant refusal disposition”).

3) On March 13, 2012, the Plaintiff filed an application for revocation of the instant disposition of rejection of reappointment with the Teachers’ Appeal Committee. On June 4, 2012, the Teachers’ Appeal Committee rendered a decision to revoke the instant disposition of rejection of reappointment on the ground that the Plaintiff reappointed as an assistant professor based on reasonable standards and justifiable evaluation pursuant to Article 53-2 of the Private School Act. However, the Defendant failed to comply with the prior procedures stipulated in Article 53-2(4) through (7) of the Private School Act and infringed the Plaintiff’s rights substantially.

4) However, the Defendant did not proceed with the procedures for examining the reappointment of the Plaintiff until now.

(e) the relevant regulations;

The defendant's provisions regarding the refusal of reappointment of this case shall be as specified in the relevant provisions of the attached Form.

【Uncontentious facts, Gap 1 through 7, 10, 11, 12, 14, 15, 16, Eul 1 and 2, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) The Plaintiff did not comply with the procedures for reappointment prescribed in Article 53-2 of the Private School Act, as well as arbitrarily dismissed the Plaintiff without examining the reappointment of the Plaintiff, thereby seeking confirmation of the invalidity of the disposition rejecting the reappointment of the instant case.

2) On the premise that the term of his assistant professor’s assistant professor’s term was from August 29, 201 to April 201, the Plaintiff asserts that the Defendant is obligated to pay the Plaintiff wages of KRW 3,386,890, and delay damages therefor paid in March 2012, and KRW 3,386,890 each month until he/she is reinstated from April 1, 2012.

The plaintiff asserts that even if the term of office of his assistant professor is not four years, the defendant's refusal to re-election of this case constitutes a tort, and that the defendant is obligated to pay damages equivalent to the above amount of money to the plaintiff. In addition, the plaintiff also asserts that the defendant is obligated to pay 10,000,000 won to the plaintiff, since the defendant was suffering from mental suffering in addition to property losses due to the defendant's refusal to re-election.

B. Defendant’s assertion

The defendant asserts that the plaintiff's assertion on the premise that the plaintiff is not a person subject to re-contract but a person subject to re-contract is without merit since the plaintiff's period of office was determined by the mediation in this case as of February 29, 2012 and agreed to retire later.

3. Determination on the claim for nullification of the disposition rejecting reappointment

(a) Relevant legal principles;

According to the relevant provisions of the Private School Act and the Special Act for Remedies for De-employment of University Faculty Members, a teacher of a private university who has been appointed by the fixed-term recruitment system for university faculty members and whose term of appointment has expired shall have the right to demand a fair review on whether he/she is reappointed with reasonable standards, barring special circumstances, unless he/she satisfies the aforementioned standards after undergoing fair review on his/her ability and qualities. In addition, where the appointing authority refuses the reappointment of a teacher who has applied for reappointment in accordance with the criteria for examination of reappointment, there are no grounds for refusing reappointment, i.e., the criteria for examination of reappointment, or even if such grounds exist, there are no grounds for not falling short of the criteria for examination of reappointment, i.e., the criteria for examination of reappointment, to the extent permitted by examination of qualifications by verifying his/her ability and qualities as a teacher, and thus denying the validity of reappointment itself based on reasonable criteria in light of social norms. Meanwhile, the determination of rejection or abuse of discretion by a private school foundation that violates the principles of equality or the principle of free evaluation.

B. Determination

According to the above facts, the term of office of the plaintiff as an assistant professor of the university of this case was expired on February 29, 2012. The defendant not only did the plaintiff whose term of office was expired but also did not go through the examination procedure for reappointment prescribed in Article 53-2 of the Private School Act, but also did not conduct the examination for reappointment against the plaintiff, and thus, the defendant infringed the plaintiff's right to request an examination in accordance with objective and reasonable criteria for reappointment. Accordingly, the rejection disposition of reappointment of this case is null and void because the substantive and procedural defects are serious.

In regard to this, the defendant asserted that the plaintiff was working until February 29, 2012 in the conciliation of this case and agreed to retire without review of reappointment, and therefore, the plaintiff is not subject to review of reappointment. Thus, the plaintiff and the defendant agreed to "the plaintiff confirmed that the plaintiff was in the status of assistant professor of the university of this case from March 1, 2004 to February 29, 2012." However, as mentioned above, each statement of Eul 3 through 7 evidence (including each number) is sufficient to recognize that the plaintiff agreed to retire without review of reappointment. Since the meaning of confirming that the plaintiff was in the status of assistant professor until February 29, 2012 in the conciliation of this case exceeds the above period, it is insufficient to recognize that the plaintiff agreed to retire without review of reappointment, and there is no other evidence to acknowledge this otherwise. Thus, the defendant's above assertion is without merit.

Thus, the disposition rejecting the reappointment of this case made by the defendant against the plaintiff is null and void, and as long as the defendant contests this, there is a benefit to seek confirmation.

4. Determination on wages and claims for damages

A. Determination on the claim for wages

The Plaintiff sought payment of the amount equivalent to the wages from March 1, 2012 to the reinstatement under the premise that his assistant professor’s term is four years from the date of reinstatement following the instant adjustment. As such, there is no evidence to acknowledge the Defendant’s term of office for four years. Rather, as seen earlier, the Defendant confirmed the Plaintiff’s status as an assistant professor of the University’s Social Welfare Department from March 1, 2004 to February 29, 2012 in the instant mediation, and the fact that Articles 33(1) and 18(1) of the Regulations on the Personnel Management of Teaching Staff stipulate that the term of office of an assistant professor newly appointed or reappointed after March 1, 202 is limited to the period stipulated in the contract. Since the university faculty appointed for a specified period of time as its term of office terminated as a matter of course due to the expiration of its term of office, the Plaintiff’s status as the university faculty member was terminated (see, e.g., Supreme Court Decision 96Da7069, Jun. 27, 2019).

Therefore, this part of the wage claim based on the premise that the plaintiff still holds the status of assistant professor is not reasonable.

B. Determination on the claim for damages

1) Even if it is deemed that a school juristic person's decision to refuse reappointment was deviating from or abused by discretionary authority of the school juristic person for the duration of liability for damages, and its judicial effect is denied, such refusal is caused by intention or negligence of the school juristic person in order to compensate for property damage on the ground that this constitutes tort. For this purpose, it should be such a case where the school juristic person has lost objective legitimacy in exercising objective duty of care. Whether such decision to refuse reappointment has lost objective legitimacy in light of the contents and nature of the ground for refusal of reappointment, degree and degree of contribution of the relevant teacher in the procedure for examination of reappointment, the existence and content of the ground for refusal of reappointment other than the grounds for refusal of reappointment, and the whole progress of the examination of reappointment, and thus, it should be determined at all on the ground that the Plaintiff did not appear to be liable for damages on the ground that there was no objective reason for rejection of reappointment by the school juristic person before the expiration of the term of office (see Supreme Court Decision 2007Da4243, Jul. 29, 2010).

2) A claim for property damages

A) In a case where an unlawful act of a school juristic person is recognized, a teacher of a private university who could have been reappointed if such an unlawful act had been conducted may claim compensation for property damages equivalent to wages during the period during which he had been appointed as a teacher if he had not committed such an unlawful act. Such a period of time during which he/she could be employed shall be determined individually by comprehensively taking into account the following: (a) the degree of the overall strictness of the standards for examination for reappointment of the university in question; (b) the difference between the major area of the university in question and the standards for examination by academic field; (c) the major area of the university in question; (d) the composition of the system for reappointment and promotion of the university in question ( regardless of whether the tenure of office is restricted; (e) the number of times or degree of passage of the teacher in question; and (e) the degree of difference between the standards for qualification for reappointment and promotion in question; and (e) the amount equivalent to wages during the relevant period of reappointment which was unlawfully rejected (see, e.g., Supreme Court Decision 2007Da424333, Jul.

B) Regarding whether the Plaintiff would have been reappointed if he had been duly reappointed, and when he would have been employed, Article 19 of the Defendant’s Regulations on the Evaluation of Teachers’ Status as well as the minimum points for each area necessary for the reappointment of assistant professors, the term of appointment expires. The recent four years of education period, 160 points for teaching business, 30 points for research business, and 160 points for salary business. The Plaintiff’s reinstatement on August 29, 201 and continued to engage in social welfare administration theory (3 years, 3, 60 students), juvenile welfare theory (3 years, 20 students, 3, and 20 students), and the Plaintiff could not be reappointed from 20 years of education and training programs (3 years, 3, 100 students, 10 students, 10 students, 10 students, 20 days of education and training), and the Plaintiff could have been reappointed from 20 days of education and training programs of the Plaintiff’s 20th of the research paper as a full-time lecturer.

Therefore, the scope of the period during which the plaintiff can claim damages is from the day following the expiration of the period of appointment (contract period) of the plaintiff until the defendant implements lawful procedures for review of reappointment for the plaintiff.

C) Next, according to the evidence evidence No. 8 as to the amount equivalent to the wages that the plaintiff could have paid during the above period, the total amount of wages that the plaintiff received from the defendant during the six months immediately preceding the disposition rejecting reappointment of the case is 20,321,320 won as shown in the annexed pay table, and monthly average wages is 3,386,886 won (=6: 20,321,320 won: 6 months, less than 6 months: hereinafter the same shall apply). Thus, the defendant is obligated to pay damages equivalent to March 1, 2012, after the expiration of the term of appointment pursuant to the disposition rejecting reappointment of the case, to the plaintiff from April 1, 2012 until the procedure for review of reappointment of the plaintiff (the plaintiff is not obligated to pay damages equivalent to 3,386,86,86 won until his/her reappointment of the plaintiff until his/her reinstatement of the plaintiff, and the plaintiff's claim for review of reappointment of his/her status is without merit.

3) Claim for consolation money

In order for private university teachers to claim consolation money on the ground that they were suffering from property damage other than property damage due to such illegal refusal, it shall be objectively clear that the school juristic person intentionally refuses to be reappointed on the ground of other reasons, such as personnel regulations, or cannot be considered as reasons for refusing to be reappointed at the university, without any grounds for refusing to be reappointed, and such circumstances may be easily recognized if it is objectively evident that the fact that the school juristic person intentionally refuses to be reappointed on the ground of other reasons for refusing to be reappointed at the university, or cannot be considered as reasons for refusing to be reappointed, such as refusal to be reappointed, but it shall be obvious that the abuse of discretion by the university on the examination of reappointment, such as refusal to be reappointed, would not be acceptable under our sound social norms or ordinary social norms (see, e.g., Supreme Court Decision 2007Da42433, Jul. 29, 201). The defendant may not be found to have been dismissed on the ground that the plaintiff was dismissed on the ground that it did not have any objective reason for refusing to be reappointed at the university.

Furthermore, as to the amount of consolation money, the amount of consolation money is determined to be KRW 5,00,000,000, when considering the following circumstances: (a) the Plaintiff’s original illegal refusal disposition of reappointment was returned to the Plaintiff through a long-term litigation; (b) the Defendant unilaterally dismissed from office without undergoing a review of reappointment; and (c) thereby taking into account the disadvantage in relation to the Plaintiff’s status and degree of defamation; and (d) other circumstances that were revealed in the instant lawsuit.

C. Sub-committee

Therefore, the Defendant is obligated to pay the Plaintiff the total amount of KRW 8,386,886 (i.e., KRW 3,386,86 on March’s damages + KRW 5,000 + KRW 5,00,00) and the amount of damages for delay at each rate of KRW 20% per annum as stipulated under the Civil Act from July 11, 2012 to September 5, 2012, which is the date of delivery of a copy of the claim and the application for change of cause, as sought by the Plaintiff, as the result of the aforementioned illegal act after July 6, 2012, which is obvious from July 11, 2012, which is the day of this decision, that it is reasonable for the Defendant to dispute the existence or scope of the obligation to pay the amount to the Plaintiff in advance, and damages for delay at each rate of KRW 3,386,86,86 per month from the following day until the day of full payment.

5. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.