[1] The case where its validity can be denied on the grounds of procedural defects in the decision to refuse the reappointment of a teacher of a private university and the extent of such defects

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

[3] 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

[4] In order for a school foundation to be liable for damages on the ground that it does not resume the procedure for review of reappointment, whether the relevant school foundation’s application for review should first be confirmed (affirmative)

[1] Article 53-2 of the Private School Act, Articles 1, 7, and 8 of the Special Act on the Relief of Persons Disqualified from Appointment of University Faculty Members / [2] Article 53-2 of the Private School Act, Article 750 of the Civil Act / [3] Article 53-2 of the Private School Act, Article 750 of the Civil Act / [4] Article 53-2 of the Private School Act, Article 750 of the Civil Act

[1] [1] [2] [4] Supreme Court Decision 2007Da42433 Decided July 29, 2010 (Gong2010Ha, 1728) / [1] Supreme Court Decision 2007Da9009 Decided February 1, 2008 (Gong2008Sang, 306), Constitutional Court en banc Decision 2005Hun-Ma723, 207Hun-Ba109 Decided October 30, 2008 (Hun-Ba145, 1488) / [3] Supreme Court en banc Decision 2000Du7735 Decided April 22, 2004 (Gong2004Sang, 905) 200Hun-Ba267838, Feb. 27, 2003 (Hun-Ba2007Hun-Ba267834, Feb. 27, 2003)

Plaintiff (Law Firm Lee, Attorneys Kim Han-chul et al., Counsel for the plaintiff-appellant)

Defendant School Foundation (Attorney Kim Hong-won, Counsel for defendant-appellant)

Daegu High Court Decision 2007Na8403 Decided June 26, 2008

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

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. 6008, Dec. 14, 2002; Act No. 6004, Feb. 26, 2003; Act No. 60068, Dec. 18, 200, respectively.

Accordingly, Article 53-2 of the Private School Act was amended by Act No. 7352 on January 27, 2005 (hereinafter “amended Private School Act”); Article 53-2 of the amended Private School Act maintained the system constitutional in each decision of inconsistency with the Constitution in 2003 (Paragraph 3); and Article 53-4 through (8) provides for the procedure of pre-determination and the procedure of follow-up relief for the refusal of reappointment of the relevant teacher. Meanwhile, the above provision does not apply retroactively pursuant to Paragraph 1 of the Addenda, but is 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 teacher who has been appointed for a specified period under the previous provision at the time of the enforcement of the amended Private School Act, the new provision was enacted for the purpose of re-election and the protection of the rights and interests of the university faculty members for up to 70 years from the date of enforcement of the amended Private School Act.

In a case where the amended Private School Act applies or applies retroactively to the procedure of a decision to refuse reappointment to a teacher of a private university due to the inconsistency with the Constitution above, if the school foundation fails to comply with the prior procedure under Article 53-2(4) through (7) of the amended Private School Act and the right to request a fair review based on reasonable standards is substantially infringed on the right to request reappointment, such decision to refuse reappointment may be denied only with such procedural defects. However, in a case where only the special law applies to a decision to refuse reappointment made prior to the enforcement of the amended Private School Act, the above special law does not stipulate the criteria for review of reappointment and the procedure for remedy after the date of subsequent review, and thus, such special law cannot be deemed immediately null and void merely because it did not follow the prior procedure under Article 53-2(4) through (7) of the amended Private School Act (see Supreme Court Decisions 2007Da909, Feb. 1, 2008; 2005Hun-Ma2307, Oct. 30, 2008).

According to the reasoning of the judgment below, the court below acknowledged the facts in its judgment and determined that, as the plaintiff, a person who was decided to refuse reappointment prior to the enforcement of the amended Private School Act as a person who was subject to the revised Private School Act and was entitled to file an application for a fair review based on reasonable standards as to whether he/she is reappointed, as well as for the fixed-term university faculty to which the former Private School Act applies. In light of the above legal principles, the judgment of the court below that held that the above right to file an application for a review of reappointment exists in the case where the amended Private School Act was not applied retroactively prior to the enforcement of the amended Private School Act as the plaintiff, and the amended Private School Act was not applied retroactively prior to the enforcement of the amended Private School Act as the plaintiff, and the argument in the grounds of appeal on this issue

2. Regarding ground of appeal No. 2

Even if the decision on refusal of reappointment of a school juristic person for a fixed-term faculty member is deemed to have deviates from or abused discretion and its judicial effect is denied, in order to seek compensation for property damage to the school juristic person on the ground that such decision constitutes a tort, the refusal of reappointment shall be recognized. To this end, the school juristic person must be determined by whether there exists 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 reason for refusal of reappointment, the degree of contribution of the relevant teacher in the process of examination of reappointment, the existence or degree of the reason for refusal of reappointment, the content and contents thereof, and the whole progress of the examination of reappointment, in light of the general standard of university.

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 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 Supreme Court and the Constitutional Court are understood as the act of free discretion of the person who is exempted from judicial review, unless there are special circumstances such as the compulsory provisions for reappointment of the articles of association or personnel regulations of the school juristic person, etc., or the employment period is merely the form of the employment contract, and the continuous renewal of the employment contract is recognized as an "indive employment".

Under the circumstances of the established legal interpretation of the private school juristic person, 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 Remedies and Remedies after the 2003 ruling of inconsistency with the Constitution, shall be deemed as having been able to recognize or avoid the outcome of the right to file an application for review of reappointment, and thus, shall not be deemed as having been able to demand compliance with the norm which was interpreted as not generally available at the time or to have fulfilled the duty of due diligence, nor be able to fulfill the duty of due diligence. Considering the circumstances, such as the fact that 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 Remedies and Remedies, the right to claim compensation for damages shall not be held liable for damages against the school juristic person on the ground that the decision of rejection of reappointment made before the enforcement of the amended Private School Act, barring special circumstances.

Meanwhile, the Constitutional Court rendered a ruling of inconsistency with the Constitution in 2003 on the grounds that the pre-examination procedure and ex post facto remedy procedure of the reappointment under the former Private School Act violate Article 31(6) of the Constitution, thereby rendering a ruling of inconsistency with the Constitution on the grounds that there is a violation of Article 31(6) of the Constitution on the grounds that the grounds for refusing the reappointment of a fixed-term faculty member should also be established, and an opportunity to state his/her position prior to the revocation of reappointment is given prior to the revocation of reappointment, or an opportunity to refuse reappointment should be given prior to the rejection of reappointment and an institutional device should be installed to bring a dispute after the rejection of reappointment. Ultimately, this can be understood as a ruling based on the premise that the right to request a fair review of the reappointment is recognized, which is the right to request a fair review of the reappointment by a fixed-term faculty member. Accordingly, as long as it has been confirmed by a judicial institution to have the right to request a review of reappointment, there is room for damages to the relevant faculty member whose effect is denied due to procedural or substantive reasons.

However, the procedure of reappointment is normally conducted in the order of application for reappointment, examination of reappointment, and determination of whether to be reappointed. The determination 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 the retirement measures have already been taken due to the expiration of the term of appointment, the procedure of reappointment shall be regarded as 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, so if the violation of such obligation continues to exist in the school

According to the reasoning of the judgment below and the records, the defendant university's decision to refuse the reappointment of the plaintiff on February 28, 199, and the defendant university's decision to refuse the reappointment of the plaintiff was rejected. According to the personnel management regulations of the defendant university, the plaintiff, who was born on January 21, 1938, reached the retirement age (65 years of age) on January 21, 2003 and reached the retirement age (65 years of age) on February 28, 2002, which was the end of the second semester. According to the above legal principles, the plaintiff, who was decided to refuse reappointment before and reached the retirement age after being sentenced to the first "the first decision of inconsistency with the Constitution", could not be held liable for damages due to the defendant's refusal of reappointment, regardless of the validity of the decision to revoke the refusal of reappointment of teachers' special petition review committee under the Special Relief Act, regardless of the validity of the decision to reject the reappointment of the plaintiff's application for reexamination. The judgment of the court below on this part was somewhat inappropriate at the time, and there were no errors in the conclusion.

3. As to the third ground for appeal

The court below held that the defendant's liability for damages caused by denial of reappointment has already been completed even if the defendant is recognized, and as long as the conclusion of the court below that the defendant is not liable for damages is justified, the legitimacy of the above additional judgment by the court below cannot affect the conclusion of the judgment, and thus, the court below's ground of appeal pointing out that the court below erred in the legal principles as to the initial date

4. Conclusion

Therefore, 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.

Justices Ahn Dai-hee (Presiding Justice)