Plaintiff (Law Firm Busan, Attorney Jeong Jae-sung, Counsel for plaintiff-appellant)

Republic of Korea (Attorney Kim Jong-soo, Counsel for defendant-appellant)

January 16, 2008

Busan District Court Decision 2007Gahap5239 Decided October 4, 2007

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 200,000,000 won with interest rate of 20% per annum from the next day of the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by considering the whole purport of the pleadings in each entry in Gap evidence 1-1-2, Gap evidence 2-2, Eul evidence 1-1, Eul evidence 2-2:

A. On February 3, 1971, the Plaintiff was appointed as a full-time lecturer at the fishery management department of the National Busan Fisheries University, and on April 1, 1974, the Plaintiff was dismissed from office on February 29, 1976 while serving as an assistant professor.

B. Following the amendment by Act No. 2774 on July 23, 1975 by the former Public Educational Officials Act (amended by Act No. 305 of Dec. 31, 1977; hereinafter the same shall apply), teachers working for universities or colleges (including colleges of education, teachers' colleges, and elementary schools) shall be appointed for a fixed period as follows: 1. Professors and associate professors: 2 through 10 years: 2 years to 3 years; 3 years to 3 assistant professors: 1 years; 2 years to 3 assistant professors; 2 years to 3 teaching assistants; and 9(3) of the Addenda to this Act (including colleges of education, teachers' colleges, and elementary schools; hereinafter the same shall apply); and at the end of February 1976, Nonparty 1, including the Plaintiff, and 2, at the time, were compelled to be reappointed by submitting a new statement of refusal to resign from the head of the National Fisheries University without careful consideration of the situation of entry of students at the time of the National Fisheries Department.

C. Meanwhile, on October 14, 2005, when the Special Act on the Remedies for De-Appointment of University Faculty Members (hereinafter “Special Act”) came into force on the Special Act on the Relief for De-Appointment of University Faculty Members, the Plaintiff filed an application for review of re-election with the Special Committee on the Appeal against Teachers by the Ministry of Education on April 4, 2006, seeking revocation of the disposition of rejection of re-election, which was taken in the form of voluntary dismissal from office, and on June 30, 2006, the Committee revoked the decision of rejection against the Plaintiff on the ground that “The Committee did not have any written statement, career certificate, and disciplinary action and punishment of the professors who worked as at the time of the Plaintiff’s research work as at the time of the re-election, since the Plaintiff appears to meet the requirements of re-election in relation to academic research, student education, and student guidance as stipulated in Article 7(1) of the Special Act.”

2. The assertion and judgment

A. The assertion

The plaintiff asserts that the head of the National Busan Fisheries University is obligated to pay 200 million won of the total sum of the damages equivalent to wages from March 1, 1976 that the plaintiff could have been reappointed to August 31, 1999, which is the scheduled date of retirement, and the damages for delay of 200 million won of the total sum of damages and mental damages suffered by the plaintiff due to illegal or unfair disposition of rejection of reappointment, which are the sum of the damages that the plaintiff could have been reappointed to the extent that the plaintiff would not be forced to resign unless he/she submits a written resignation, even though there was no reason to decline the plaintiff from the reappointment.

Accordingly, the defendant asserts that the plaintiff's right to claim compensation for damages arising from the rejection of reappointment is not allowed since the plaintiff submitted a written resignation and submitted it to be dismissed from office, and even if it is not so, the decision of rejection of reappointment does not constitute tort since it belongs to the free discretion of the appointing authority. Even if the disposition of rejection of reappointment is illegal and unjust, the plaintiff filed the lawsuit of this case only after three years have passed since it had already been aware of the damages and the perpetrator at the time of the decision of rejection of reappointment, although the plaintiff had already known of

B. Determination

(1) The nature of the disposition rejecting re-election of this case

As seen earlier, the Plaintiff submitted a resignation document to be excluded from reappointment without the intention of internal deliberation in which he is forced or she actually ordered to resign from reappointment by the head of the school affairs division of the National Busan Fisheries University and the head of the student division, etc. of the National Fisheries University. As such, the Plaintiff’s submission of a resignation document constitutes a false representation of resignation, as well as the Plaintiff’s submission of a resignation document is invalid in light of the spirit of Article 44(2) of the former Public Educational Officials Act, which prohibits a recommendation agency (see Supreme Court Decision 87Da2243, Feb. 14, 1989).

Therefore, the dismissal disposition against the plaintiff based on the submission of a written resignation is also null and void. Ultimately, the dismissal disposition against the plaintiff by the head of the National Busan Fisheries University is the same as the rejection disposition due to the expiration of the term of appointment for the fixed-term university faculty.

(2) Whether tort was established

An assistant professor of a national or public university who has been appointed as a fixed-term teacher and whose term of appointment has expired after undergoing a fair examination based on reasonable standards regarding his/her ability and qualities as a teacher and, barring any special circumstance, has the right to apply for a fair examination on whether he/she is reappointed in accordance with reasonable standards, barring special circumstances (see Supreme Court en banc Decision 2000Du7735, Apr. 22, 2004). In addition, if a private school teacher, who could have been reappointed if he/she had undergone a lawful examination for reappointment in accordance with reasonable criteria for review for reappointment, has been illegally refused to be reappointed, he/she may seek compensation for damages equivalent to wages on the ground that such refusal to be reappointed constitutes a tort (see Supreme Court Decision 2003Da262, Mar. 9, 2006). This legal doctrine also applies to a national or public university teacher.

According to the statement in Gap evidence 1-2, the plaintiff published three thesiss in the National Busan Fisheries University's Social Science Research Research Institute's office during the service period, and did not neglect research activities, such as joining the Korea Fisheries Management Association as a member of the research institute, from June 13, 1972 to October 10, 1973, as a student instruction member, from October 12, 1973 to August 31, 1975, as a student instruction member, and from the next day to August 31, 1975, as the student education and guidance were faithfully conducted, and during the service period of the plaintiff was not subject to any punishment, such as disciplinary action, etc., so the plaintiff could be sufficiently reappointed if he was re-appointed. Thus, the plaintiff's rejection disposition constitutes the tort in this case since the head of the National Busan Fisheries University refused re-election without examining the requirements for substantial reappointment of the plaintiff, such as research performance, etc.

(3) Whether the statute of limitations expired

(A) Judgment on the defendant's assertion

The "date when the person becomes aware of the damage and the perpetrator" under Article 766 (1) of the Civil Act, which is the starting point of starting the short-term extinctive prescription of a claim for damages caused by a tort, means not only the time when the person actually becomes aware of the occurrence of the damage and the perpetrator, but also when the harmful act becomes aware that the damage can be claimed as a tort for this reason. In case where the damage is sustained as a result of continuous tort, unless there are special circumstances, the damage shall be deemed to have been extinguished separately from the time when the person becomes aware of the damage in the application of Article 766 (1) of the Civil Act (see Supreme Court Decision 98Da30285 delivered on March 23, 199).

In the case of this case where the defendant's refusal disposition against the plaintiff illegally issued the disposition of the refusal of re-election and the subsequent failure to implement the lawful procedures for re-election continues to occur, the damages shall be deemed to have been extinguished by the extinctive prescription from the time the plaintiff becomes aware of each damages arising from the new tort for each day. However, since the plaintiff's damages equivalent to the wages from February 29, 1976 to August 31, 1999, which occurred from February 29, 1976, and the lawsuit of this case seeking compensation for damages and consolation money from August 31, 1999, which is the date of the refusal disposition of re-election, and from August 31, 1999, the fact that the plaintiff filed on March 23, 2007, which is more than three years after the date of the scheduled date of the retirement of the plaintiff, the plaintiff's damages claim due to the rejection disposition of this case has become void by the extinctive prescription. The above argument of the defendant is justified.

(B) Judgment on the Plaintiff’s assertion

1) The plaintiff is running from the time when the right is exercised under the Civil Act. There is no provision related to the reappointment of the former Public Educational Officials Act at the time of the refusal disposition of re-election, and the Supreme Court also asserts that the claim for damages can not be filed on the ground that the reappointment of a fixed-term teacher whose term of appointment expires is a discretionary act by the person who has the right to appoint and dismiss. The Constitutional Court rendered a decision of inconsistency with the Constitution as to the main sentence of Article 53-2 (3) of the former Private School Act (amended by Act No. 6004 of Aug. 31, 1999) on December 18, 2003. The plaintiff's claim for damages can only be filed after the amendment of the above Act in accordance with the purport of the decision of inconsistency with the Constitution. Thus, the plaintiff's claim for damages should continue after the amendment of the above Act.

The extinctive prescription refers to a case where there is a disability in the exercise of rights, for example, where the period has expired or the possibility of the exercise of rights has not been known, and even if there was no negligence due to the failure of such knowledge, such a cause does not constitute a legal disability (see Supreme Court Decision 2006Da63150, May 31, 2007).

Even if there were no provisions related to the former Public Educational Officials Act at the time of the rejection disposition of reappointment, the teachers of national and public universities whose term of appointment has expired after being appointed as fixed-term teachers after a fair examination based on reasonable standards for their abilities and qualities has the right to request fair review based on reasonable standards for reappointment unless there are special circumstances. Even if the Supreme Court did not accept a claim for damages against a fixed-term teacher whose term of appointment has expired, it is not impossible to claim compensation for damages against the rejection disposition, and changes in precedents following changes in the form of rights or social environment do not constitute legal obstacles (see Supreme Court Decision 93Da3622 delivered on April 13, 1993). In light of the above, there were no provisions related to the reappointment in the former Public Educational Officials Act, and the Supreme Court's position not to accept a claim for damages against a fixed-term teacher whose term of appointment has expired, and thus, the plaintiff's assertion that the above grounds for expiration of the term of appointment should not be justified from January 27, 2005.

2) The Plaintiff asserts that the obligor’s assertion for the completion of extinctive prescription is an abuse of right when it is impossible or significantly difficult for the obligee to exercise the right objectively, and thus, it is not permissible for the obligor to claim for damages against the Defendant due to the lack of precedents or laws of the Supreme Court at the time of the instant rejection disposition. Therefore, the Defendant’s assertion for the completion of extinctive prescription cannot be allowed as it constitutes

The exercise of the obligor's right of defense based on the statute of limitations is governed by the principle of good faith and the prohibition of abuse of rights, which are the major principles of our civil law. Thus, in special circumstances where the obligor has made it impossible or considerably difficult for the obligee to exercise the obligee's right or the interruption of the statute of limitations prior to the completion of the statute of limitations, or acted to make such an obligee believe it unnecessary, or there exists an objective obstacle to the obligee to not exercise the right, or the obligor has made the right holder trust it, or when there is a great need to protect the obligee, or when other creditors of the same condition receive the repayment of the obligation, etc., it is remarkably unreasonable or unfair to allow the obligor to claim the completion of the statute of limitations as an abuse of rights against the principle of good faith. However, if the obligor's claim for the completion of the statute of limitations goes against the principle of good faith and constitutes an abuse of rights, it should be acknowledged that special circumstances such as the obligor's claim for the completion of the statute of limitations, and the operation of the specific system under the law by applying such general principles, are excluding the operation of law.

In light of the above legal principles, the defendant's assertion on the completion of extinctive prescription cannot be allowed as an abuse of rights against the principle of good faith merely because the plaintiff failed to file a lawsuit against the defendant due to lack of precedents or laws of the Supreme Court at the time of the refusal of re-election of this case. The plaintiff's assertion

3. Conclusion

If so, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance and the plaintiff's claim is dismissed.

Judges highest (Presiding Judge) and Lee Jin-soo