[1] Whether a private university teacher, whose reappointment was refused before the amendment of the Private School Act enters into force, has the interest in filing a lawsuit to seek confirmation of the rejection of reappointment and the invalidation of notification as a civil lawsuit, regardless of the administrative remedy procedure under the Special Act on the Relief of Persons Disqualified from Appointment System for the University Faculty (affirmative)

[2] Whether a school foundation is obligated to re-appoint a private school teacher whose term of appointment expires (negative in principle)

[3] Where a decision to dismiss a request for review by the Special Committee on the Examination of Appeal against Teachers under the Special Act on the Relief of Persons Disqualified from the Appointment System for University Faculty Members becomes final and conclusive, whether the pertinent school foundation must be reappointed or re-appointed to the relevant teacher (negative)

[4] Requirements for establishing property damage liability of a school juristic person due to illegal denial of reappointment of a fixed-term university faculty member and the scope of liability

[5] The case where a private university teacher can claim consolation money in addition to property damage caused by illegal refusal of reappointment

[6] In a case where a decision of inconsistency with the Constitution regarding Article 53-2 (3) of the former Private School Act was rendered prior to the pronouncement of a decision of inconsistency with the Constitution, whether a school juristic person is liable to compensate for damages on the ground of unlawful refusal of reappointment

[7] Whether a school juristic person's liability for damages caused by illegal denial of reappointment after the decision of inconsistency with the Constitution as to Article 53-2 (3) of the former Private School Act can be satisfied only after the time when the relevant teacher's request for reexamination is objectively confirmed (affirmative)

[1] Article 248 of the Civil Procedure Act, Article 53-2 of the Private School Act, Articles 1, 7, and 8 of the Special Act on Relief for Persons Disqualified for the Appointment of Fixed Faculty / [2] Article 53-2 of the Private School Act / [3] Article 53-2 of the Private School Act, Articles 1, 7, and 8 of the Special Act on Relief for Persons Disqualified for the Appointment of Fixed Faculty Members / [4] Article 53-2 of the Private School Act, Articles 393, 750, and 763 of the Civil Act / [5] Article 53-2 of the Private School Act, Article 751 of the Civil Act / [6] Article 53-2 of the Private School Act, Article 750 of the Civil Act / [7] Article 53-2 of the Private School Act, Article 750 of the Civil Act

[1] [2] Supreme Court en banc Decision 2003Da52647 Decided March 9, 2006 (Gong2006Sang, 569) / [1] Supreme Court Decision 2007Da9009 Decided February 1, 2008 (Gong2008Sang, 306) Supreme Court en banc Decision 2007Da5057 Decided January 14, 2010 / [3] Constitutional Court Decision 2005Hun-Ma119 Decided April 27, 2006 (Hun-Ga116, 116), Constitutional Court en banc Decision 2005Hun-Ma723, 207Hun-Ba109 Decided October 30, 208 / [209Hun-Ga636, Apr. 27, 2007] Supreme Court en banc Decision 2007Hun-Ga636, Apr. 27, 2007

Plaintiff (Law Firm Lee & Lee, Attorneys Lee In-ia et al., Counsel for plaintiff-appellant)

Defendant School Foundation (Law Firm Cheongju, Attorneys Yu Jae-sung et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2007Na857 Decided June 22, 2007

The part concerning damages after February 27, 2003 is reversed within the scope of damages claim amounting to 170,000,000 won and damages for delay, and this part of the case is remanded to the Daejeon High Court. The remaining appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal on the duty of reappointment and the duty of performing procedures for reappointment

A. Article 53-2 (3) of the former Private School Act (amended by Act No. 426 of Apr. 7, 190; Act No. 5274 of Jan. 13, 197); the former Private School Act (amended by Act No. 604 of Aug. 31, 199; hereinafter referred to as the “former Private School Act”) provides that the term of office of the teachers subject to review of their reappointment shall be determined within 7 months prior to the date of appointment; the term of office of the teachers subject to review of the amendment of the Act No. 200Hun-Ba26; the term of office of the teachers subject to review of the amendment of the Act shall be determined by the former Private School Act; the term of office of the teachers subject to review of the amendment of the Act No. 320, Feb. 27, 2003; and the former Private School Act provides that the term of office of the teachers subject to review of their reappointment shall be determined within 5 years prior to the expiration of the term of appointment.

B. Meanwhile, separate from the amended Private School Act, the Special Act enacted on July 13, 2005, the Act for the Remedy of De-elections for University Faculty Members (hereinafter “Special Act on Remedy”) and enforced on October 14, 2005. The Special Act on Remedy provides for the right to review the re-elections for the faculty members excluded from reappointments in the national, public, and private universities (Article 1), the special Act for the protection and remedy of the rights of university faculty members excluded from reappointments for the purpose of protecting and remedying the rights and interests of university faculty members excluded from reappointments (Article 1); the Act provides for the right to request for review on the date of expiration of the term of appointment (including the case of dismissal, removal, or dismissal of teachers from office) by the person who has the authority to appoint or the person who has the authority to appoint, before the date of entry into force of the amended Private School Act; the Act provides for the right to request for review on the appointments of faculty members excluded from reappointments or those who have not been reappointeds within the age of appointments (including the case of dismissals).

C. In light of the details of the enactment and amendment of the amended Private School Act and the Special Act on Relief, a teacher of a private university who is appointed as a university faculty term appointment system 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 shall be entitled to request a fair examination based on reasonable standards as to whether he/she is reappointed, barring any special circumstances. As long as there is a dispute as to whether a person who has the right to appoint and dismiss refuses to re-appointing a teacher of a private university whose term of appointment has expired has an effect on his/her legal relationship of the university faculty, and thus, the university faculty has the interest in filing a lawsuit to seek confirmation of refusal to renew and notification through civil litigation (see, e.g., Supreme Court Decisions 2003Da52647, Mar. 9, 2006; 2007Da9009, Feb. 1, 2008). 206

D. If a person who has the authority to appoint and dismiss a teacher of a private university, whose appointment period has expired, becomes void due to procedural or substantive reasons, the school juristic person is obligated to resume the procedure for examining whether he/she is reappointed to the relevant teacher. However, as seen earlier, the Constitutional Court ruled that the term appointment system itself cannot be deemed as unconstitutional in the decision of inconsistency with the Constitution as to Article 53-2(3) of the former Private School Act, and accordingly, the amended Private School Act also maintains its existence, barring special circumstances, such as compulsory provisions for reappointment, or repeated renewal of the appointment contract, the school juristic person is obligated to be reappointed as a matter of course for a private school teacher whose appointment period has expired, or its prescribed appointment period is merely a form of appointment period, and thus, the status of the university faculty cannot be maintained despite the expiration of the appointment period (see, e.g., Supreme Court Decision 2003Da52647, Mar. 9, 206).

E. Examining the reasoning of the judgment below in light of the above legal principles, the judgment below is just in holding that the court below did not have an obligation to perform the procedures for the defendant's duty of reappointment or reappointment, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of

2. As to the ground of appeal on the validity of the decision to revoke the Special Committee

The Special Remedies Act does not have any special provision on the validity of the review decision in cases where the Special Committee makes a decision to accept a request for review, such as a decision to revoke a decision to reject reappointment, and in light of the reasons for the proposal of the Special Remedies Act and the legislative process and the contents of the provisions indicated in the records, even if the decision to reject the review of the Special Remedies Act becomes final and conclusive, it is only effective to confirm that the previous rejection disposition is unfair, and it is difficult to deem that the relevant school juristic person is obliged to bear the duty to be reappointed or to perform the procedures for reappointment (recontract) by the relevant school juristic person (see, e.g., Constitutional Court Order 2005HunMa119, Apr. 27, 2006; Constitutional Court Order 2005HunMa723, 2007HunBa109, Oct. 30, 2008). The argument in the grounds of appeal on this is also unacceptable

3. As to the ground of appeal on the claim for damages

(a) Requirements for establishing liability for damages of school juristic persons resulting from illegal refusal of reappointment and the scope of liability;

Even if a decision to refuse the reappointment of a school juristic person for a fixed-term faculty member is procedural or substantive defect and its judicial effect is denied, it should be recognized that the refusal of reappointment was caused by the school juristic person’s intentional or negligent act 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 assume liability for damages to the university by taking into account all the circumstances, such as the content and nature of the ground for refusal of reappointment, the degree of contribution of the relevant teacher in the course of examination of reappointment, the degree or degree of the reason for refusal of reappointment, the existence of the reason for refusal of reappointment in addition to the grounds for refusal of reappointment, and the contents thereof, and the whole progress of the examination of reappointment, as a standard.

Where tort of a school juristic person is recognized through such determination, a teacher of a private university who could have been reappointed if he/she had been duly reappointed may claim for property damage equivalent to his/her wages during the period during which he/she could have been appointed as a teacher if he/she had not committed such illegal act (see Supreme Court Decision 2003Da262, Mar. 9, 2006, etc.). The scope of the period during which he/she could be reappointed should be determined individually by comprehensively taking into account such factors as the degree of general strictness of the standards for examination for reappointment of the relevant university and the criteria for examination by academic area (such as humanities, society, natural department, etc.), the major of the relevant university and the actual status of reappointment (whether the period of service is restricted, whether the criteria for examination of reappointment and promotion are differentiated between reappointment and promotion) of the relevant university, the personal research capacity (the number of times and degree of transit prior to reappointment, and the degree of difference between the standards for recognition of reappointment in the relevant university) of the relevant university.

Meanwhile, in order for a private university teacher to claim consolation money on the ground that he was suffering from a separate mental pain other than property damage as mentioned above due to the illegal refusal of reappointment, if the school juristic person intentionally refuses reappointment on the ground of another name under the intention to find the relevant teacher in the university even though there is no reason to refuse reappointment, or if it objectively apparent 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 under the personnel regulations, etc., or is objectively apparent and he paid a little attention, such circumstance may be easily identified, but it should be obvious 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, e.g., Supreme Court Decisions 95Da6823, Apr. 23, 1996; 2006Da30730, Jun. 26, 2008).

B. As to the liabilities of the school juristic person before the ruling of inconsistency with the Constitution was rendered in 2003

However, as seen earlier, the former Private School Act prior to the amendment did not have any provision on the prior procedure for the reappointment of faculty members of private universities, who are appointed by the fixed-term appointment system for university faculty members, and the grounds for refusal of reappointment and the procedure for remedy after the decision of inconsistency with the Constitution over two times in 2003 or the Supreme Court en banc Decision 2000Du7735 Decided April 22, 2004, the Supreme Court and the Constitutional Court, prior to the ruling of inconsistency with the Constitution of the school juristic person, etc. and the Constitutional Court, were understood as the act of free discretion that is excluded from judicial review, unless there are special circumstances, such as the right to demand a fair review on the expectation of reappointment or the existence of the right to demand a fair review on the appointment of faculty members of private universities, who are appointed by the fixed-term appointment system for university faculty members, and the term of appointment is merely the form, and the continuous renewal of the appointment contract is recognized.

Under such circumstances of the established interpretation of the law, the court below held liability for damages on the basis of the right to file an application for review of reappointment, which is recognized as a changed legal interpretation due to the amendment of the Private School Act and the enforcement of the Special Act on Remedy after 2003, on the basis of the right to file an application for review of reappointment, which is recognized as a change in the current legal interpretation following the amendment of the Private School Act and the enforcement of the Special Act on Remedy. It does not mean that the private university teachers at the time were able to recognize or avoid the outcome of such right or infringement of legal interest. It does not mean that the private university teachers at the time demand compliance with the generally interpreted norm or have not been able to fulfill the duty of due diligence, nor is it expected that the pertinent school juristic person will be able to be able to undergo a legitimate review of reappointment through relief procedures such as request of confirmation of invalidation under the Civil Act before the enforcement of the amended Private School Act, barring any special circumstance. This applies likewise to the case where it is retroactively applied to the pertinent school juristic person in 200 years.

C. As to the liabilities of school juristic persons after the decision of inconsistency with the Constitution was rendered in 2003

As seen earlier, the Constitutional Court rendered a ruling of inconsistency with the Constitution in 2003 on the grounds that the legislative absence of the procedure for the review of reappointment and the procedure for remedy after the fact that the former Private School Act violated Article 31(6) of the Constitution, thereby rendering a ruling of inconsistency with the Constitution on the grounds that the legal principle of inconsistency with the Constitution regarding the procedure for review of reappointment and the procedure for remedy after the review of the former Private School Act violates Article 31(6) of the Constitution, the Supreme Court determined that the fixed-term university faculty members should have an opportunity to state their position prior to the revocation of reappointment or an opportunity to refuse the reappointment, and that there should be an institutional device to raise any dispute after the rejection of reappointment. Ultimately, this can be understood as a ruling on the premise that the right to request a fair review of reappointment, which is the right to request a fair review of the reappointment, is recognized, and as long as it has been confirmed by a judicial institution to have the right to request a review of reappointment, it is likely to be liable for damages if a school juristic person still fails to resume the procedure for the relevant teacher whose decision of

However, the procedure of reappointment is normally conducted in the order of application for reappointment, examination of reappointment, and decision of refusal of reappointment is based on the premise of the intention of the application for reappointment. If a 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 procedure of reappointment shall be deemed completed in accordance with the general concept of the parties. Therefore, even if a school juristic person has an obligation to review the reappointment because the decision of refusal of reappointment has been denied due to procedural or substantive reasons, if the violation of such obligation continues to exist, then the applicant for review should first be confirmed

Therefore, even if it is confirmed that there was a right to apply for review of reappointment against a teacher of a private university, who is subject to the 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 not fulfilled his/her duty to review as to the disposition of refusal of reappointment in the past, and the liability of a school juristic person due to illegal refusal of reappointment can be limited to only after the time when the relevant teacher is objectively confirmed as the applicant for review. Meanwhile, the relevant teacher’s request for review may be expressed directly through the act of urginging or requesting the examination of reappointment to the school juristic person, but it can be confirmed by filing a lawsuit seeking confirmation of invalidity

Furthermore, in order for a school juristic person to be held liable for property damages on the ground that the school juristic person did not resume the procedure for review of reappointment, as seen earlier, notwithstanding the fact that such an applicant for reappointment had been confirmed, the school juristic person's intentional or negligent act should be recognized as well. As such, the school juristic person's failure to resume the procedure for examination of reappointment is not deemed justifiable in the past, and thus, the school juristic person's intentional or negligent act on the ground that such refusal is no longer maintained as is. Therefore, the school juristic person's intentional or negligent act on the ground that the ground for refusal of reappointment was affirmed in the past, the degree and nature of the ground for refusal of reappointment in the course of examination of reappointment, the relevant school juristic person's explanation or degree in the procedure for examination of reappointment, the existence or absence of the ground for refusal of reappointment in fact in the determination of refusal of reappointment, and the whole progress of the examination of reappointment, shall be determined on the basis of whether the school juristic person's general duty of care was found to have lost objective legitimacy. In addition, in order to claim consolation money to a school juristic person on the same ground, the past

D. As to the defendant's liability for damages in this case

According to the reasoning of the lower judgment and the record, the lower court rejected the Plaintiff’s claim for damages against the Defendant, who was denied the Plaintiff’s reinstatement on August 27, 1998, on the grounds as indicated in its reasoning, on the grounds that the illegality of the decision to refuse reappointment of the instant case or the Defendant’s intention or negligence was denied. Accordingly, the Plaintiff sought compensation for property and mental damage from March 1, 1998, which was the time when the first service is available after the decision to refuse reappointment of the instant case, and limited the scope of the appeal to KRW 170,000,000 and damages for delay.

According to the above legal principles, the Defendant cannot be held liable for damages incurred before the decision of inconsistency with the Constitution was rendered in 2003 ( February 27, 2003). Thus, although the judgment of the court below was somewhat inappropriate at the time of its reasoning, it is justified in the conclusion that the Defendant’s intention or negligence on the Plaintiff’s damages was illegitimate.

However, after the decision of inconsistency with the Constitution was rendered in 2003, the defendant is liable for damages if the defendant did not perform his/her duty of review even if the decision of refusal of reappointment becomes null and void due to substantive or procedural reasons and the defendant's intent or negligence is confirmed to exist, and such defendant's measure is recognized. If the defendant still fails to perform his/her duty of review after the decision of inconsistency with the Constitution in 2003 became final and conclusive after the decision of refusal of reappointment of this case became final and conclusive, the court below should determine whether the defendant is liable for damages in accordance with the standard of judgment as seen above.

Therefore, the lower court’s judgment that rejected the entire claim for damages of this case erred by misapprehending the legal doctrine on the requirements for establishing liability for damages caused by the refusal of reappointment and the scope thereof, which led to failure to exhaust all necessary deliberations. Therefore, without examining the remaining grounds of appeal, the part of damages incurred after February 27, 2003, which was decided by the lower court as unconstitutionality decision in 2003, cannot be reversed.

4. Conclusion

Therefore, the part of the judgment below concerning damages after February 27, 2003 within the scope of the damages claim amounting to 170,000,000 won and damages for delay, which are the scope of the appeal, shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination, and the remaining appeal by the plaintiff shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)