[1] In a case where a decision to refuse the reappointment of a school foundation for a fixed-term university faculty member is deemed to deviate from or abuse of discretionary power and its judicial effect is denied, whether the decision to refuse the reappointment has lost objective legitimacy in order to claim damages against the school foundation on the ground of an illegal act (affirmative), and the standard for such determination / In a case where a tort against the school foundation is recognized, the scope of property damage compensation for a private university teacher to be claimed (=the amount equivalent to wages

[2] The purport of Article 53-2 (7) of the Private School Act stipulating the grounds for deliberation on reappointment to be based on objective grounds stipulated in school regulations

[3] In a case where Gap et al., which establishes and operates a private university, constitutes a tort by losing objective legitimacy of the rejection of reappointment as to Eul et al., who is a teacher of the contract for the above university, the case holding that the disposition of refusal of reappointment constitutes a tort by Eul et al, since it lost objective legitimacy by lacking objective duty of care in light of the general university’s standard

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

[1] Even if a decision on refusal of reappointment by an educational foundation for a fixed-term university faculty member is deemed to have abused or abused discretion and its judicial effect is denied, it should be recognized that the refusal of reappointment was caused intentionally or negligently by the educational foundation in order to compensate for property damage to the educational foundation on the ground that such decision constitutes tort. For this purpose, it should be determined based on whether there exists a substantial reason for the school foundation 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 reappointment, the degree of contribution of the relevant teacher in the process of examination of reappointment, the degree of the reason for refusal of reappointment, the existence or degree of the relevant teacher’s explanation in the process of examination of reappointment, the contents thereof, and the whole progress of examination of reappointment, etc. In cases where it is acknowledged that a school foundation’s tort has been re-appointed through such judgment, the school foundation could have been entitled to receive damages if it had not been re-appointed due to such unlawful act.

[2] The first sentence of Article 53-2(7) of the Private School Act provides that, in deliberating on whether a faculty member is reappointed pursuant to Article 53-2(6) of the same Act, the grounds prescribed by the school regulations should be based on objective grounds, such as the evaluation of “matters concerning student education, academic research, and student guidance,” and “matters concerning student guidance.” In full view of the following: (a) developments leading up to the amendment of the relevant provisions of the Private School Act including the above provisions; (b) the legal nature of the relevant provisions of the Private School Act and the structure of deliberation on the reappointment within a university under the Private School Act; (c) ex post facto remedy procedure for refusal of reappointment and the scope of judicial review; and (d) the purport of Article 53-2(7) of the Private School Act provides that the grounds for deliberation on reappointment should be based on objective grounds prescribed by the school regulations, not only on the person who has the authority to appoint but also on the matters concerning student education; (d) evaluation of the matters concerning academic research and the guidance of the relevant faculty; and (e) the objective criteria for refusal of reappointment should be established.

[3] In a case where Gap corporation which establishes and operates a private university constitutes a tort by losing objective legitimacy as to Eul, etc. who is a teacher of the contract at the above university, the case holding that Gap corporation, which established strict evaluation criteria for reappointment to the extent that it is difficult for many teachers to go through the examination for reappointment in reality due to lack of objectivity and rationality, was subject to disposition to refuse reappointment as to Eul, etc. while taking procedures for de facto examination for reappointment in a way that relieves or employs a large number of persons falling short of the standards based on arbitrary criteria, and this constitutes a tort against Eul, etc. on the ground that the general university's standard loses objective legitimacy by lacking objective duty of care.

[4] In order to claim consolation money on the ground that a teacher of a private university was suffering from property damage in addition to property damage caused by illegal refusal of reappointment, if the school foundation intentionally refused reappointment on the ground of another name under the intention to find the relevant teacher in the university or college although 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, such as personnel regulations, or cannot constitute grounds for refusal of reappointment, or is objectively apparent and paid attention, such circumstance can 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 in our sound social norms or social norms.

[1] Article 53-2 of the Private School Act; Articles 393, 750, and 763 of the Civil Act / [2] Article 53-2 (7) of the Private School 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 751 of the Civil Act

[1] [4] Supreme Court Decision 2007Da42433 Decided July 29, 2010 (Gong2010Ha, 1728) / [2] Supreme Court Decision 2010Du1835 Decided January 13, 201 (Gong201Sang, 349)

Plaintiff 1 and one other (Law Firm Ansanyang et al., Counsel for the plaintiff-appellant)

School Foundation ○ Private Teaching Institute (LLC, Kim & Lee LLC, Attorneys Park Sang-soo et al., Counsel for the defendant-appellant)

Defendant 2 (Bae, Kim & Lee LLC, Attorneys Park Sang-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2015Na2032767 decided November 18, 2015

The part of the lower judgment against the Plaintiffs regarding property damage is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals by the Plaintiffs and the appeals by Defendant ○○ Institute of Education are dismissed. The costs of appeal between the Plaintiffs and Defendant 2 are assessed against the Plaintiffs.

The grounds of appeal are examined.

1. As to the ground of appeal by Defendant School Foundation ○○ Private Teaching Institute (hereinafter “Defendant Corporation”)

For the reasons indicated in its holding, the lower court determined that the disposition rejecting the reappointment of the Plaintiffs was null and void because the criteria for review of reappointment are not properly established, and some standards lose rationality, thereby abusing or abusing discretion.

In light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal principles regarding the terms and conditions of the reappointment of private school teachers, the evaluation standards thereof, the discretionary examination of the evaluation standards for the reappointment of private school teachers, and the relief standards for private school teachers excluded from the examination for reappointment, and thereby adversely affecting the conclusion

2. Regarding the plaintiffs' grounds of appeal

A. As to the claim for property damage

1) Even if a decision to refuse reappointment of a school foundation for fixed-term faculty member is deemed to have been abused or abused from discretionary authority and its judicial effect is denied, it should be recognized that such refusal was caused intentionally or negligently by the school foundation in order to compensate for property damage to the school foundation on the ground that such decision constitutes tort. For this purpose, the school foundation’s general standard should be deemed to have lost objective legitimacy of the decision to refuse reappointment. Whether the decision to refuse reappointment has lost objective legitimacy should be determined based on the content and nature of the ground for refusal of reappointment, the degree of contribution of the relevant teacher in the process of examination of reappointment, the degree of the reason for refusal of reappointment, the existence or degree of the relevant teacher’s explanation in the procedure of examination of reappointment, the contents thereof, and the whole progress of the examination of reappointment, etc.

2) Meanwhile, the first sentence of Article 53-2(7) of the Private School Act provides that in deliberating on whether a faculty member is reappointed to the relevant faculty member pursuant to Article 53-2(6) of the same Act, the grounds prescribed by the school regulations should be based on objective grounds, such as the evaluation of “matters concerning student education, academic research, and student guidance.” In full view of the following: (a) developments leading up to the amendment of the relevant provisions of the Private School Act, including the aforementioned provisions; (b) the legal nature of the provisions of the Private School Act and the structure of deliberation on the reappointment within a university under the Private School Act; (c) ex post facto remedy procedure for refusal of reappointment and the scope of judicial review; and (d) the purport of Article 53-2(7) of the Private School Act provides that the grounds for deliberation on reappointment should be based on objective grounds prescribed by the school regulations, such as determination of qualifications or eligibility for reappointment of a faculty member as a university faculty member as not only on the person having authority to appoint but also on the matters concerning student education, academic research and guidance of the relevant faculty member.

3) Examining the following circumstances revealed by the reasoning of the lower judgment and the record in light of the legal doctrine as seen earlier, it can be deemed that the Defendant corporation’s refusal to re-appoint the Plaintiffs would lose objective legitimacy by failing to perform an objective duty of care in light of the general university’s standard. It is reasonable to deem that the act of the Defendant corporation constitutes a tort against the Plaintiffs.

A) Article 25 of the Regulations on the Personnel Management of Teaching Staff of △△ University established and operated by Defendant Corporation provides for the terms and conditions of the reappointment of affiliated teaching staff. However, with respect to contractual teaching staff such as the Plaintiffs, the said contractual staff shall comply with the terms and conditions of the individual employment agreement, without mentioning the detailed criteria for the examination.

B) From March 2005, the Plaintiffs drafted an agreement on teacher appointment with △△ University each year from March 2005, the first appointment period of the Plaintiffs: (a) signed an agreement on teacher appointment with △ University; (b) published a thesis at least 150% in domestic and overseas well-known academic areas for one year during the term of the contract; and (c) acquired at least 54 points in the research sector and at least 85 points in total in the evaluation of achievements (research-oriented model). This condition attached to the terms of the appointment of assistant professors appointed before December 31, 2001, compared to the terms of the appointment of assistant professors employed before December 31, 2001 under Article 25 of the Regulations on the Personnel Management of △△△ University, the research performance evaluation points are at least two times, and the performance evaluation points are higher than 15 points.

C) The Regulations on the Business Evaluation of Teaching Staff of △△ University provide that “The total number of 20 points in the education field, 60 points in the research field, and 20 points in the service field shall be the full number of 10 points in the research field, and where there are additional points, it shall exceed 100 points in the research field. In this case, “All the research records shall be recognized, and all the research records shall be evaluated as basic points for up to 10%, and the basic points for up to 300% shall be assessed as 1/2 of the basic points for up to 300%, and the excess points shall be appraised as 1/4 of the basic points for the basic points, without considering the level or quality of the research field, it shall be difficult to acquire the highest points in the research field without exception.

Since 2007, the degree of restriction on the acquisition of points in the research field of the faculty subject to reappointment was strengthened. In the case of the drama and film field majored by Plaintiff 1, it shall be deemed to be “Domestic drama A” and when an exhibition is held in a large art field, it shall be deemed to be “international exhibition A” and when an exhibition is held in a large art field, it shall be deemed to be “international exhibition.” However, in the case of the theater and film field with the starting point in 2007, it shall be deemed to be an “international exhibition.” However, in the case of the theater and film sector with the starting point in 2007, it shall be limited to the case where an exhibition is held in a specialized art gallery of G8 country (at least 1,00 square meters in the actual exhibition area or at least 300 square meters in the national theater) and only the same grade was limited to the case where an exhibition is held in a specialized art field of G8 country. In addition, by 208, the number of teachers subject to reappointment was assigned different grades from 10 to 20/100.

D) In the field of service in the evaluation of achievements, the points are calculated by adding or adding the points according to separate items to the basic points of 20 points. Among them, the basic points are composed of departments and major operation cooperation (2 points), simple college operation cooperation (5 points), school contribution, participation, and duty loyalty (13 points). Since objective and detailed evaluation criteria are not provided, the evaluation is not a subjective one, and it is difficult for the teacher to predict who is a teacher to receive points by any criteria and methods. In addition, in relation to the items of “school contribution, participation, and duty loyalty” which constitute the largest portion of the service field, the “evaluation sheet” that the defendant corporation claims that it was based on its evaluation is not informed or disclosed in advance to the plaintiffs, and the circumstances that the defendant corporation knew or disclosed it to the plaintiffs, and the basic points are mainly indicated in the structure that makes it difficult for the teacher subject to reappointment to acquire points that fall under additional points, as long as it does not fall under the category of additional points.

E) It is difficult for teachers to acquire high points in the evaluation of their achievements due to the rules on the differential evaluation of research performance or the method of evaluation of their service field, etc. As of January 1, 2002, there were two or more research achievements for reappointment compared to those of those of those of those of those appointed before January 1, 202, and 15 or more points, which are below the standards for reappointment each year. In the case of 72 domestic teachers who applied for reappointment in 2013, 21 persons including the plaintiffs (29.2%) in the case of 74 foreign teachers, and 40 persons (54.1%) in the case of 74 foreign teachers, the achievement evaluation points, including 5.88 points in the research, and 83.78 points in the achievement evaluation points including 5.90 points in the research, and 66.90 points in the achievement evaluation points including 34.90 points in the research.

F) From among 21 domestic teachers who fall short of the criteria for reappointment, the teachers’ personnel committee of Defendant Corporation was assessed for the first year after new appointment, on the ground that the faculty members of the nursing department have contributed to the development of the school, on the ground that the faculty members in charge of assigned positions, such as the dean, have failed to prepare for the evaluation of their achievements through temporary retirement or passed the overall standards, but at the same time, they would make the maximum efforts to conduct research on the publication of a number of thesiss, etc., 14 additional 14 teachers were included in the subject of reappointment. As a result, only 7 teachers, including the plaintiffs, were selected as those subject to the exclusion from reappointment. The board of directors of Defendant Corporation participated in the project team for the improvement of the teachers’ training system at universities and colleges on the ground that 7 teachers recommended to be reappointed, who were reappointed, were finally reappointed in the form of 40 years including the plaintiffs, and were reappointed in the form of 14 years and 40 years including the plaintiffs.

G) Ultimately, Defendant corporation did not exclude certain persons who fall short of the qualifications as in ordinary cases through the procedures for the examination of reappointment, rather than through the procedures for the examination of reappointment. In light of the lack of objectivity and rationality and the research and educational circumstances of the pertinent university, it can be deemed that many teachers were selected by way of remedying or new recruitment of a large number of the teachers who fall short of the standards. However, the Defendant corporation did not provide for any content or principle regarding the criteria for the selection of the persons subject to reappointment among the total persons who fall short of the standards. This is difficult to recognize legitimacy as being contrary to the provisions of the main sentence of Article 53-2(7) of the Private School Act and its legislative intent, which requires the deliberation of the reappointment of teachers on the basis of objective grounds prescribed by the school regulations.

In addition, it is difficult to accept the determination of reappointment on the ground that the school foundation's selection of a person eligible for reappointment is not significantly different from that of arbitrary selection of a person eligible for reappointment, as the school foundation is involved in the selection of a person eligible for reappointment from among the teachers who fall short of the criteria for examination, and that it was not lost objective legitimacy on the ground that the result of deliberation seems reasonable ex post facto when the deliberation was conducted without setting the contents and principles of the criteria.

H) Meanwhile, even before 2013, a number of faculty members, who did not meet the standards for reappointment, have been relieved of all the faculty members who did not meet the standards, and there was no case of refusing reappointment on the ground that the number of faculty members did not fall short of the standards for reappointment prior to the instant disposition of refusing reappointment. The Plaintiffs also appeared to have been reappointed on several occasions, but continued to be reappointed even though their achievements evaluation points fall short of the standards for reappointment

4) As can be seen, it is reasonable to view that Defendant corporation’s act of rejecting the reappointment of this case against the Plaintiffs, while taking de facto procedures for examining the reappointment in a way that relieves or employs a large number of persons falling short of the standards based on arbitrary criteria, to the extent that it is difficult for many teachers to undergo a strict examination of reappointment due to lack of objectivity and rationality, would lose its objective legitimacy.

Nevertheless, the lower court denied the Defendant corporation’s tort liability, which concluded that the instant disposition rejecting reappointment was difficult to be deemed to have lost objective legitimacy to the extent that it should be liable for damages to the Defendant corporation. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of tort caused by a school foundation’s decision rejecting reappointment. The allegation contained in the grounds of appeal on this point is with merit

B. Regarding the claim of consolation money

1) In order to claim consolation money on the ground that the teacher of a private university was suffering from property damage other than property damage due to the illegal refusal of reappointment, if the school foundation intentionally refused reappointment on the ground of another name under the intention to find the relevant teacher in the university or college 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 examination of reappointment or cannot constitute grounds for refusal of reappointment, such as personnel regulations, or is objectively apparent and paid attention, such circumstance can be easily identified, but it is 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 Supreme Court Decision 2007Da42433, Jul. 29, 2010).

2) The lower court rejected the Plaintiffs’ claim for consolation money on the ground that there is insufficient evidence to acknowledge that the Defendants intentionally refused to be reappointed on the grounds of another name, or committed tort, such as impairing the honor of the Plaintiffs by improper means and impairing the teaching council’s activities, etc. under the intent to solely find the Plaintiffs in a university or college, even though there is no reason to

Examining the aforementioned legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding consolation money, defamation and insult, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal as to the plaintiffs' conjunctive claim, the part against the plaintiffs as to property damage among the judgment below is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal by the plaintiffs and the appeal by the defendant corporation are dismissed, and the costs of appeal between the plaintiffs and the defendant 2 are borne by the losing party. It is so decided as

Justices Kim Jong-hee (Presiding Justice)