[1] In a case where a school foundation's decision to reject the reappointment of a fixed-term faculty member of a university is deemed to deviate from or abuse of discretion and its judicial effect is denied, the requirements for liability for damages caused by the tort (i.e., loss of objective legitimacy) and the criteria for determination

[2] In a case where a decision to refuse the reappointment of a fixed-term faculty member of a university is recognized as a tort of a school juristic person, the scope of property damages that a teacher may claim (=amount equivalent to wages during the period of

[3] Whether a school juristic person's liability for damages caused by unlawful refusal of reappointment can be satisfied only after the objective confirmation of the applicant's intention of reexamination of reappointment is confirmed, even though it is confirmed that there is a right to apply for examination of reappointment against a teacher of a private university under the Constitution of the Constitutional Court as to Article 53-2 (3) of the former Private School

[4] The case where a teacher of a private university can claim consolation money in addition to property damage on the ground of his refusal of reappointment

[1] Article 53-2 of the Private School Act; Article 750 of the Civil Act / [2] Article 53-2 of the Private School Act; Articles 393, 750, and 763 of the Civil Act / [3] Article 53-2 (3) of the former Private School Act (amended by Act No. 5274 of Jan. 13, 1997); Article 53-2 (3) of the former Private School Act (amended by Act No. 6004 of Aug. 31, 199); Article 53-2 (3), (4), (5), (7), and (8) of the Private School Act; Article 53-2 (3), (6), (7), and (8) of the Addenda (amended by Act No. 750, Jan. 27, 2005); Articles 393, 750, and 763 of the Civil Act / [30-2 of the Private School Act; Article 575-1 of the Private School Act

[1] [1] [2/3/4] Supreme Court Decision 2007Da42433 Decided July 29, 2010 (Gong2010Ha, 1728) / [1/3] Supreme Court Decision 2009Da30946 Decided January 27, 2011 (Gong201Sang, 404) / [2] Supreme Court Decision 2003Da262 Decided March 9, 2006 (Gong2006Sang, 565) / [4] Supreme Court Decision 2006Da30730 Decided June 26, 2008 (Gong2008Ha, 1046)

Plaintiff (Law Firm Han, Attorneys Lee dilution-dilution, Counsel for plaintiff-appellant)

School Foundation's Standing Institute (Law Firm Sejong, Attorney Park Young-young, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Na114118 decided August 19, 2011

All appeals are dismissed. The costs of appeal are assessed against each appellant.

The grounds of appeal are examined.

1. Judgment on the Defendant’s grounds of appeal

A. As to the first ground for appeal

Article 53-2(3) of the former Private School Act (amended by Act No. 4226, Apr. 7, 1990; Act No. 5274, Jan. 13, 1997); Article 53-2(3) of the former Private School Act (amended by Act No. 5274, Jan. 13, 1997; Act No. 6004, Aug. 31, 1999; Act No. 53-2(3) of the former Private School Act (amended by Act No. 6004, Feb. 27, 2003; Act No. 6688, Feb. 18, 2003; Act No. 6813, Feb. 27, 2003; Act No. 6887, Feb. 14, 2002; Act No. 6947, Feb. 3, 2003>

Accordingly, Article 53-2 of the Private School Act was amended by Act No. 7352 on Jan. 27, 2005 (hereinafter “amended Private School Act”); Article 53-2 of the amended Private School Act maintained the system constitutional in 2003 as it is (3) and (4) through (8) provides for ex-ante procedures and ex-post remedies for refusal of reappointment of the relevant teacher. Meanwhile, the above provisions are not applied retroactively pursuant to Article 1(1) of the Addenda, but are applied from January 27, 2005, the enforcement date of the amended Private School Act. However, Article 53-2 (2) of the Addenda only provides for a transitional provision that “for a college educational institution appointed for a specified period under the previous provisions at the time of the enforcement of the amended Private School Act, the amended provisions shall govern, separately from the amended Private School Act, for the protection of rights and interests of the university and interests of the 3rd and the 15th National University Faculty for the purpose of re-election from the 205th National University.

Even if a school juristic person’s decision on refusal of re-election against a fixed-term university faculty member is deemed to have deviates from or abused discretion and its judicial effect is denied, it should be recognized that such refusal was caused intentionally or negligently by the school juristic person in order to compensate for property damage to the school juristic person on the ground that such decision constitutes a tort. For this purpose, it should be determined based on whether the school juristic person has a substantial reason to be liable for damages to the university by comprehensively taking into account all the circumstances such as the content and nature of the ground for refusal of re-election, the degree of contribution of the relevant teacher in the process of examination, the degree and degree of such refusal, the existence or absence of the relevant teacher’s explanation in the process of examination of re-election, the contents thereof, and the progress of the examination of re-election, and the whole progress of the examination of re-election. In cases where a school juristic person’s tort is acknowledged through such judgment, the school juristic person could have been reappointed if he/she had been reappointed, and such private university or college did not have any unlawful act during the period of 20.

After compiling the adopted evidence, the court below acknowledged the facts as stated in its decision, and held that the defendant's rejection of reappointment of this case against the plaintiff on March 1, 1996 cannot be deemed to have undergone a fair review based on reasonable criteria, and thus null and void as an unlawful decision that deviates from or abused personnel authority over reappointment. Although the defendant served a written request for reexamination to revoke the rejection of reappointment of this case on February 20, 2006 through the Appeal Review Committee for Teachers, it is reasonable to view that the defendant's rejection of reappointment of this case has lost objective legitimacy by fulfilling an objective duty of care in light of the general university's standard, even though the defendant confirmed his intention of the request for reexamination to revoke reappointment of this case on February 20, 206, the defendant did not resume the review procedure until now. Thus, the court below held that the defendant was liable to compensate the plaintiff for property damage caused by such tort.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the elements for establishing property liability of a school juristic person due to unlawful rejection of reappointment to university faculty members as alleged in the grounds of appeal.

B. Regarding ground of appeal No. 2

According to the records, the court below's decision that the plaintiff's act alleged by the defendant contributed to the creation and expansion of damages caused by the defendant's illegal rejection of reexamination is just and acceptable, and there is no error of law such as misunderstanding of legal principles as alleged in the grounds for appeal.

2. Judgment on the Plaintiff’s grounds of appeal

A. As to the first ground for appeal

In general, procedures for reappointment are conducted in the order of application for reappointment, examination of reappointment, and determination of whether to be reappointed. The premise of the intention of the application for reappointment is that the decision of refusal of reappointment is based on the premise of the intention of the application for reappointment. If the decision of refusal of reappointment has already been made in the examination of reappointment and retirement measures have already been taken due to the expiration of the term of appointment, the relevant procedures for reappointment shall be deemed completed in accordance with the general concept of the parties. Therefore, even if a school foundation has an obligation to review the reappointment because the decision of refusal of reappointment has been denied due to procedural or substantive reasons, and

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 as 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 that he/she has failed to perform his/her duty of review as to the disposition of refusal of reappointment in the past, and the liability of a school juristic person for damages caused by illegal refusal of reappointment can only be satisfied after the objective confirmation of the relevant teacher (Supreme Court Decision 2007Da42433 Decided July 29, 2010).

Even if the plaintiff filed a civil lawsuit against the defendant before the decision of inconsistency with the Constitution was rendered in 2003 and brought a lawsuit against the defendant to invalidate the decision of refusal of reappointment of this case, as long as the plaintiff did not indicate his/her intention of reexamination separately after the decision of inconsistency with the Constitution was rendered, the defendant shall not be held liable for damages arising from the defendant's non-performance of the duty of reexamination. Therefore, the court below's rejection of the plaintiff's claim for damages on

B. Regarding ground of appeal No. 2

According to the reasoning of the lower judgment, the lower court determined that it is difficult to view that the portion of the benefits as an oriental medical doctor is included in the wages that the Plaintiff would have received if he/she had been reappointed and worked normally on the ground that it is merely an irregular basis only when he/she was assigned to a hospital or provided with special payment conditions, such as actual medical treatment.

In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no violation of the rules of evidence or misapprehension of legal principles as to the scope of liability for damages as alleged in the grounds of appeal

C. Regarding ground of appeal No. 3

In order to claim consolation money on the ground that a private university teacher was suffering from property damage, other than property damage, due to the illegal refusal of reappointment, if the school juristic person intentionally refused reappointment on the ground of another name under the intention to find out the university or college without any grounds for refusal of reappointment, or if it objectively obvious and with due care that the fact which was the ground for refusal of reappointment does not constitute grounds for review of reappointment or cannot constitute grounds for refusal of reappointment, such as personnel regulations, etc., even though the school juristic person has no grounds for refusal of reappointment, such circumstance can be easily recognized. However, it should be clear that the abuse of discretion by the university on the examination of reappointment, such as refusal of reappointment, is not permissible under our sound social norms or social norms (see Supreme Court Decision 2006Da30730, Jun. 26, 2008, etc.).

According to the reasoning of the judgment below, the court below rejected the plaintiff's claim for consolation money on the ground that it is difficult to recognize that the defendant intentionally did not resume the procedure for review of reappointment on the ground of another name under the intention to find the plaintiff, even though there is no reasonable ground to refuse reappointment against the plaintiff or not to resume the procedure for reexamination of reappointment, or that the ground for refusal of reappointment in the past is not a ground for review of reappointment, such as the defendant's personnel regulations, or cannot be considered as a ground for refusal of reappointment, and that such circumstance is objectively apparent and easily recognizable.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the establishment of liability for mental damage or in violation of the rules of evidence.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)