2014Da65397 Invalidity, etc. of a disposition rejecting reappointment

A

Law Firm Gyeong-Gyeong et al., Counsel for defendant-appellant

Attorney Kim Jong-soo, Justice Kim Jong-soo, mediation

B Educational Foundation

Law Firm branch of the Republic of Korea

[Defendant-Appellee] Defendant 1 and 3 others (Law Firm Hong, Attorney Kim Jong-tae, Justice Kim Jong-young, Counsel for defendant-appellant-appellee)

Daegu High Court Decision 2013Na5382 Decided August 20, 2014

May 14, 2015

The part of the lower judgment against the Defendant regarding property damage is reversed, and that part of the case is remanded to the Daegu High Court. The remainder of the appeal is dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1, 2, and 3. Based on its stated reasoning, the lower court determined that the Defendant was liable to compensate the Plaintiff for property damage caused by tort, on the grounds that the Defendant intentionally or by negligence was acknowledged regarding the disposition rejecting re-election against the Plaintiff on February 28, 2010, and the Defendant was liable to compensate the Plaintiff for property damage caused by tort. On the other hand, if the Plaintiff was re-appointed if he had received a lawful re-election review, he could have been employed as a teacher within the Plaintiff’s retirement age from March 1, 2010 to the time the Defendant performed the procedures for re-election against the Plaintiff. In so doing, the Defendant

In light of the relevant legal principles and records, the above determination by the court below is just, and there is no error in the misapprehension of legal principles as to the recognition of intention or negligence, which is an element of tort liability, and the period during which private school teachers can be reappointed

2. As to the fourth ground for appeal

For the reasons indicated in its holding, the lower court determined that the Defendant was liable to compensate the Plaintiff for consolation money on the ground that the Defendant’s abuse of discretion in examining whether the Plaintiff is reappointed is not acceptable under the sound social norms and social norms, and that the Plaintiff suffered emotional distress. Examining in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and there was no error of misapprehending the legal doctrine regarding the above materials.

3. As to the fifth ground for appeal

(1) The lower court rejected the Defendant’s assertion that the Plaintiff earned a certain amount of income from conducting research services, etc. even after the disposition rejecting reappointment of the instant case, and thus, should be deducted from the scope of property damage compensation by deeming it an intermediate income within the scope of property damage compensation. The Plaintiff’s assertion that the Plaintiff’s income from September 2013 after the disposition rejecting reappointment of the instant case does not extend to the business suspension allowance calculated as “70% of the average wage” under Article 46(1) of the Labor Standards Act based on the same period

(2) However, it is difficult to accept the above determination by the lower court.

The benefits in proximate causal relation with the discharge of an employee’s obligation to provide labor during the period of dismissal, among the benefits that the employee was discharged from his/her duty to provide labor during his/her dismissal period due to a cause attributable to the employer, fall under the benefits obtained by releasing his/her obligation under Article 538(2) of the Civil Act, and thus, if the employer pays wages during the period of dismissal to the employee, such benefits may be deducted from interim income. Such legal principle applies in calculating the scope of damages pursuant to the claim for damages on the ground that the unfair dismissal is illegal, in principle, in principle, to all the benefits in proximate causal relation with the fact causing losses: Provided, That even in such a case, interim income shall not be deducted from the amount within the limit of the shutdown allowance under Article 46(1) of the Labor Standards Act among the amount of wages that the employee could have been paid, and the interim income shall be deducted only from the amount exceeding the shutdown allowance (see Supreme Court Decision

Examining the record in accordance with the above legal principles, the amount within 70% of the average wage, which is a shutdown allowance under Article 46 (1) of the Labor Standards Act, out of the amount equivalent to the amount of the Defendant’s wage to be paid as compensation for damages, cannot be fully deducted from the income accrued after the Plaintiff’s refusal to re-election. However, the amount exceeding the closure allowance can be deducted from the amount of proximate causal relation with the disposition of refusal to

(3) Nevertheless, the lower court determined that the Defendant could not fully deduct the amount equivalent to the amount of wages that the Plaintiff received as compensation for losses on the ground that the income does not fall under the business suspension allowance. In so doing, it erred by misapprehending the legal doctrine on the deduction of business suspension allowance and interim income, thereby failing to exhaust all necessary deliberations.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant 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 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Cho Jae-hee