[1] Where a decision of inconsistency with the Constitution is rendered through a constitutional complaint, there is a ground for retrial under Article 75(7) of the Constitutional Court Act as to the final judgment of the relevant case, and the retroactive effect of the improvement of legislation due to the decision of inconsistency with the Constitution as a matter of course is not possible on the grounds that the decision of inconsistency with the Constitution becomes final and conclusive, and the amended provisions of the Private School Act, which are the legislative improvement pursuant to the provisions of Article 53-2(3) of the former Private School Act, which are applied by the decision

[2] Whether a private university teacher appointed as a fixed-term teacher loses his status as a university faculty member upon expiration of the term of appointment (affirmative with qualification)

[3] The case holding that a private university teacher who could be reappointed is entitled to claim compensation for damages equivalent to wages on the ground that the decision of refusal constitutes a tort, in case where the private university teacher was unlawfully denied reappointment in accordance with the criteria for review of reappointment under the current Private School Act

[1] Where a decision of inconsistency with the Constitution is rendered through a constitutional complaint, the case holding that the amended provisions of the Private School Act, which are the legislative amendment pursuant to the provisions of Article 53-2 (3) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997), shall apply retroactively to the decision of inconsistency with the Constitution, where there is a ground for retrial under Article 75 (7) of the Constitutional Court Act, which was the basis of the decision of inconsistency with the Constitution, and the retroactive effect of the improvement of the legislation pursuant to the decision of inconsistency with the Constitution, naturally, is inconsistent with the relevant case

[2] Unless there are special circumstances, such as the articles of association, personnel regulations, or employment contracts are enforced to be reappointed, or repeated employment contracts are renewed, a private school teacher whose employment period expires shall lose his status as a university faculty member upon expiration of his employment period.

[3] In light of the provisions of the amended Private School Act, a private school teacher who has been appointed as a fixed-term teacher and the term of appointment of which has expired shall have the right to request a fair review based on reasonable standards as to whether he/she is reappointed with the expectation of reappointment, unless there are special circumstances, unless he/she satisfies the standards after undergoing a fair review on his/her ability and qualities, as prescribed by the above Act, and thus, barring special circumstances, if a private school teacher who would have been reappointed if he/she had undergone a lawful review on reappointment pursuant to the criteria for review on reappointment prescribed by the current Private School Act was unlawfully rejected, the case holding that such decision to refuse reappointment

[1] Article 75(7) of the Constitutional Court Act; Article 53-2(3) of the former Private School Act; Article 53-2(3), (4), (5), (6), (7), and (8) of the Private School Act / [2] Article 53-2(3) of the Private School Act / [3] Article 53-2(3), (4), (5), (6), (7), and (8) of the Private School Act; Article 750 of the Civil Act

[1] Constitutional Court en banc Order 2000HunBa26 decided Feb. 27, 2003 (HunGong78, 234)

Plaintiff

Schools of Medical Sciences

Supreme Court Decision 99Da41398 delivered on February 11, 2000

The part that dismissed the Plaintiff’s appeal on damages equivalent to wages and retirement benefits after the expiration of the term of appointment among the original judgment is revoked. The part of the lower judgment against the Plaintiff (Re-Appellant) regarding damages equivalent to wages and retirement benefits after the expiration of the term of appointment is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the Plaintiff (Re-Appellant)

The grounds for retrial and the grounds for appeal are examined.

1. The record reveals the following facts.

On March 1, 1983, the Plaintiff (hereinafter referred to as “Plaintiff”) was appointed as a professor at Aju University under the Defendant (the Defendant for review, and the Defendant referred to as “Defendant”) on a ten-year period of employment. On October 31, 1984, the Defendant dismissed the Plaintiff ex officio on the ground that the above ex officio dismissal was null and void, and the above ex officio dismissal was null and void in the wage claim lawsuit filed by the Plaintiff during the period of employment, and thus, the Defendant did not reinstate the Plaintiff, notwithstanding the fact that the decision to pay wages until the Plaintiff is reinstated within the limit of February 28, 1993, the expiration date of employment period, was issued and confirmed.

The Plaintiff filed a lawsuit against the Defendant seeking compensation for damages equivalent to the wages or retirement benefits during the entire period from the expiration of the term of appointment to the retirement age, or consolation money. Under the premise that the fixed-term employment system for university faculty members under Article 53-2 (3) of the Private School Act (amended by Act No. 5274 of Jan. 13, 1997, hereinafter referred to as the “former Private School Act”) prior to the amendment is constitutional without any additional provision on the procedure for reappointment, the Plaintiff merely accepted part of the consolation money claim for refusal of the Plaintiff’s request for reinstatement from the expiration of the term of appointment after the judgment that the dismissal becomes void, and on the ground that the Plaintiff lost the Plaintiff’s status as university faculty members due to the expiration of the term of appointment, the lower court dismissed all of the claims for compensation for damages equivalent to the wages and retirement benefits after the expiration of the term of appointment on the ground that the Defendant’s refusal to be reappointed as discretionary action by the appointing authority for university faculty members was an abuse of discretionary power or lacking evidence.

In filing an appeal against the judgment below, the court below did not recognize the claim for wages after the expiration of the term of appointment and the claim for damages equivalent to wages and retirement benefits after the expiration of the term of appointment. The court below erred in incomplete deliberation, etc., and asserted that the defendant should compensate for damages incurred by falsely notifying the date of initial appointment to the Private School Teachers' Pension Foundation. The plaintiff submitted an application for adjudication on unconstitutionality of law to the effect that the status of university faculty members employed for a specified term due to the university faculty term appointment system under Article 53-2 (3) of the former Private School Act is unconstitutional. However, the judgment of the court below is just, and the Supreme Court dismissed the appeal on the ground that the compensation for damages caused by false notice was submitted only

However, on February 27, 2003, the Constitutional Court (200Hun-Ba26) rendered a decision of inconsistency with the Constitution to the effect that Article 53-2 (3) of the former Private School Act does not conform with the Constitution and that Article 53-2 (3) of the former Private School Act provides for the procedures related to reappointment by making a decision of inconsistency with the Constitution (hereinafter referred to as “decision of inconsistency with the Constitution”), while Article 75 (7) of the Constitutional Court Act provides that the plaintiff filed a petition for review of this case pursuant to the Constitutional Court Act, inasmuch as the legislators’ adoption of a fixed-term appointment system, which is not a retirement age guarantee system, cannot be deemed as unconstitutional, in itself, of the adoption of a new appointment system, not a fixed-term appointment system, which is not a retirement age guarantee system.

Article 53-2 of the former Private School Act was amended by Act No. 7352 on January 27, 2005 (hereinafter referred to as the “former Private School Act”). In the decision of inconsistency with the Constitution of this case, the provision of the appointment system for university faculty was maintained (Paragraph 3), the prior notification of the expiration of the term of appointment and application for deliberation on reappointment for faculty members whose term of appointment expires (Paragraph 4), prior notification of application for deliberation on reappointment (Paragraph 5), prior notification (Paragraph 6), the purpose and reason of refusal of reappointment specifically, objective deliberation on legal matters, guarantee of opportunity to state opinions of faculty members (Paragraph 7), appeal procedure (Paragraph 8), etc. was prepared in detail.

2. The instant case constitutes the pertinent case where the decision on non-conforming to the Constitution through the constitutional complaint was an opportunity to make a decision on the constitutional complaint, and there is a ground for retrial as to the instant case where the Constitutional Court of the Republic of Korea has cited the “case where the Constitutional Court of the Republic of Korea has been admitted” under Article 75(7) of the Constitutional Court Act, and as to the relevant case, the retroactive effect of the improvement legislation based on the decision on non-conforming to the Constitution has naturally been applied, the amended provisions of the current Private School Act should naturally be applied retroactively to the part where

However, in a judgment subject to review, the Plaintiff’s claim for appeal is subdivided into: (i) the claim for wages premised on the maintenance of the status of university faculty members even after the expiration of the term of appointment; (ii) the claim for damages equivalent to wages and retirement benefits after the expiration of the term of appointment premised on the illegality of the Defendant’s refusal of reappointment; and (iii) the claim for damages suffered by the Plaintiff by falsely notifying the date of initial appointment to the Private School Teachers’ Pension Management Corporation; and (ii) further,

First, in relation to the above part of the claim ①, the decision of inconsistency with the Constitution of this case is judged to be unconstitutional. Accordingly, as a result, the current Private School Act maintains the system of appointment of university faculty members under the provision of the term of appointment, barring special circumstances, such as compulsory renewal of the articles of association, personnel regulations, or employment contracts, or repeated renewal of employment contracts, a private school teacher whose term of appointment expires shall lose the status of university faculty members upon expiration of the term of appointment, and there are no special circumstances in the records of this case. Accordingly, the above claim is not different from the previous in that the status of the plaintiff as a teacher belonging to the defendant after expiration of the term of appointment is no longer maintained. Accordingly, the effect of the decision of inconsistency with the Constitution of this case is irrelevant to the decision of inconsistency with the Constitution of this case. In addition, the above claim ③ is not related to the decision of inconsistency with the Constitution of this case from the beginning of the term of appointment. Accordingly, the above part of the claim ③ cannot be deemed to be a ground for retrial, but it is limited to the above part of the ground for retrial.

3. In light of the amended provisions of the Private School Act, a teacher of a private school who has been appointed as a fixed-term teacher and whose term of appointment has expired shall have the right to request a fair review based on reasonable standards as to whether he/she is reappointed with the expectation that he/she will be reappointed, barring special circumstances, if he/she satisfies the standards after undergoing a fair review on his/her ability and qualities, as prescribed by the above Act. Thus, if a teacher of a private school who would have been reappointed if he/she had undergone a lawful review on reappointment in accordance with the criteria for review on reappointment prescribed by the current Private School Act was unlawfully rejected, he/she may seek compensation for damages equivalent

The court below determined that there is not sufficient evidence to view that the defendant's refusal of reappointment against the plaintiff was abused or deprived of discretionary power on the premise that it is valid under Article 53-2 (3) of the former Private School Act. However, since the provision on the procedure for reappointment was newly established pursuant to Article 53-2 (4) through (8) of the current Private School Act, which applies to this case retroactively to this case, the criteria for review on the legality of refusal of reappointment were newly established. Thus, the court below should re-examine and determine whether the plaintiff illegally refused reappointment despite the fact that the plaintiff could be re-appointed in accordance with the criteria for review based on the provisions related to reappointment of the current Private School Act, and then determine whether to accept the plaintiff's claim according to its conclusion. In the trial process up to the court below, the court below failed to have sufficiently deliberated to determine whether the defendant's refusal of reappointment against the plaintiff based on the aforementioned new provisions. In this regard, the part on the wages and retirement benefits after the expiration of the term of appointment cannot be maintained any more.

4. Therefore, the part of the judgment dismissing the Plaintiff’s appeal on damages equivalent to wages and retirement benefits after the expiration of the term of appointment among the judgments subject to review shall be revoked, and the part of the judgment below against the Plaintiff regarding that part of the judgment below shall be reversed and remanded to the court below for further proceedings consistent with this Opinion. The remaining request for retrial shall be dismissed. It is so decided as per Disposition by the assent

Justices Shin Shin-chul (Presiding Justice)