[1] Whether a school juristic person’s liability for damages caused by illegal refusal of reappointment can be limited to only after the time when the relevant teacher’s request for review confirms objectively (affirmative), and whether the genuine intent of the applicant for review to serve as a teacher when he/she is reappointed is recognized as objectively (affirmative)

[2] In a case where Gap sought damages against Eul school juristic person for unlawful refusal of reappointment, the case affirming the judgment below holding that Gap's request for reexamination of reappointment cannot be objectively confirmed on the ground that Gap's request for reexamination of reappointment cannot be seen as objectively confirmed on the ground that Gap's request for reexamination without the premise of his intention to reinstate Eul's university merely based on the fact that Gap already served as an assistant professor of Byung university at the time of filing a request for reexamination of reappointment with the Special Committee on Examination of Appeal for Teachers and later served as an associate professor

[1] Article 53-2 of the Private School Act; Article 750 of the Civil Act / [2] Article 53-2 of the Private School Act; Article 750 of the Civil Act

[1] Supreme Court Decision 2007Da42433 decided July 29, 2010 (Gong2010Ha, 1728)

Plaintiff (Attorney Yellow-il, Counsel for the plaintiff-appellant)

Newdong Private Teaching Institute (Attorney Dog-sung et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na122294 decided October 7, 2011

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. The procedure for the reappointment of a teacher of a private university, appointed by the fixed-term appointment system for university faculty members, is ordinarily conducted in order of application for reappointment, examination of reappointment, and determination as to whether he/she is reappointed. Thus, even if a school foundation has no procedural or substantive effect in the decision of refusal of reappointment, and thus, is obligated to examine the reappointment, the violation of such duty should first be verified by the relevant teacher’s agent who first

Therefore, even if it is confirmed that a teacher of a private university is entitled to file an application for review of reappointment in 2003 due to a ruling of inconsistency with the Constitution in 2003, it is not reasonable to promptly give a school juristic person any legal disadvantage on the ground of nonperformance of the duty of review as to the disposition of refusal of reappointment, and the liability of a school juristic person due to illegal refusal of reappointment can only be limited to the time after the objective confirmation of the relevant teacher is confirmed (see Supreme Court Decision 2007Da42433, Jul. 29, 2010, etc.).

Meanwhile, the relevant teacher’s request for reexamination may be indicated as an act of urging or requesting an examination of reappointment directly to the school juristic person. However, in the case of filing a lawsuit seeking confirmation of invalidity of a decision to refuse reappointment against the school juristic person, or filing a petition for reexamination under the Special Act on Relief of Persons Deserting the Appointment of Fixed-Term Faculty Members (hereinafter “Special Act on Remedy”). However, if the relevant school juristic person is reappointed, the relevant doctor is recognized as having the genuine intent to serve as a teacher in the relevant school juristic person, and thus, it should be individually determined based on specific circumstances, such as the details of the request for reexamination and the relevant teacher’s situation.

2. The lower court determined that the Plaintiff’s request for reexamination cannot be objectively confirmed the Plaintiff’s request for reexamination solely on the ground that the Plaintiff filed a request for reexamination of reappointment with the Special Committee on October 14, 2005, with the intention to work at the Defendant University instead of the Defendant University, based on the following factors: (a) the Plaintiff had already worked as an assistant professor at the ○ University at the time of filing the request for reexamination of reappointment; and (b) the Plaintiff’s appointment as an associate professor at the ○ University on April 1, 2006 as an associate professor at the real estate management department; (c) the Plaintiff’s salary income received as an associate professor at the ○ University as an associate professor or associate professor at the ○ University; and (d) the location of the ○ University and the Defendant University as a full-time lecturer at the 3-year full-time lecturer at the ○ University.

In light of the above legal principles and records, the above judgment of the court below and the fact-finding that led to its judgment are just and acceptable. Contrary to the grounds of appeal, there is no illegality that affected the conclusion of the judgment by either conducting fact-finding beyond the bounds of the principle of free evaluation of evidence against logical and empirical rules or by misapprehending the legal principles as to the recognition of the re-examination

3. Accordingly, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)