2010Na1974 Liability for Damages

00 (******************)*

Gwangju Northern-gu

Attorney Park Jong-soo, Counsel for the defendant-appellant

Korea

Representative of Law, Minister of Justice, Minister of Foreign Affairs

Law Firm Locom, Counsel for defendant-appellant

Attorney Park Sung-sung et al.

Gwangju District Court Decision 2009Gahap8248 Decided February 18, 2010

September 17, 2010

October 15, 2010

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff KRW 221,206,456.

1. Basic facts

A. On March 28, 1961, the Plaintiff graduated from the department of medicine at the university of 00, a national university. On February 26, 1968, the Plaintiff was newly employed as a full-time lecturer in the department of medicine at the university of 00 at the university of public health and the department of medicine at the university of public health on February 26, 1968 after acquiring the master’s degree of health and hygiene.

B. Article 9(3) of the Public Educational Officials Act (amended by Act No. 2774, Jul. 23, 1975; hereinafter referred to as the "Act") provides that teachers who are attending universities and colleges (including colleges of education, teachers' colleges, and elementary-level colleges) shall be appointed for a fixed period (six to ten years for professors and associate professors, two to three years for assistant professors and full-time instructors, one year for teaching assistants, and one year for teaching assistants), while Article 9(3) of the Act provides that teachers who work at universities and colleges shall be reappointed as of the end of February 1976 pursuant to Article 9(3) of the Act and Article 9(3) of the Addenda provides that teachers who work at universities and colleges shall be reappointed as of the end of February 2, 1976 shall be established in universities and colleges (including colleges of education, teachers' colleges, elementary-level colleges) to deliberate on matters concerning their organization, functions, and operation (hereinafter referred to as "the legislative act in this case").

C. In order to determine matters concerning the organization, function, and operation of the Teaching Reappointment Review Committee, the Act enacted by Presidential Decree No. 7809 on September 15, 1975, and procedures for the organization and operation of the Teaching Reappointment Review Committee were prepared.

D. In accordance with the Public Educational Officials Act amended in 1975 and the Regulations of the Deliberation Committee on Appointment of Professors, a literature issuance guidelines for the procedures for the appointment of professors was formulated at the 10 University Council held on October 21, 1975.

On the other hand, around that time, 00 universities organized a faculty reappointment review committee and examined whether they hold office as professors. As a result, the Plaintiff was dismissed from office on February 29, 1976 pursuant to Paragraph 2 of the Addenda of the Public Educational Officials Act amended in 1975 (hereinafter “instant refusal disposition”). After that, the Plaintiff was appointed as a faculty member on January 7, 1978, and was retired on the same day as the Plaintiff was on February 28, 2004.

E. At the time of the disposition to refuse the reappointment of the instant case, the records relating to the criteria for review of the reappointment of the instant ten universities and the records relating to the review of the review of the reappointment of the said university are lost due to the expiration

F. On April 2006, the Plaintiff filed an application with the Special Committee on the Examination of Appeal for Teachers by the Ministry of Education and Human Resources Development for revocation of the instant disposition of refusal to re-election. On July 14, 2006, the Special Committee on the Examination of Appeal for Teachers by the Board of Education rendered a decision to revoke the disposition of refusal to re-election the instant case upon receiving the Plaintiff’s claim on July 14, 2006.

[Ground of recognition] Facts without dispute, Gap's statements in Gap's 2 through 5 (if there are additional numbers, each lot number shall be included; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff's assertion

The legislative act of this case and the disposition rejecting the reappointment based thereon constitute an unlawful act on the following grounds, and thereby, the plaintiff thereby incurred damages of KRW 221,206,456 [the amount equivalent to wages that the plaintiff would have received if he had worked as a professor at 10 university from March 1, 1976 to February 28, 2004, which is the date following the disposition rejecting the reappointment of this case, and the scheduled date of the plaintiff's retirement from March 1, 1976] + 50,000,000 (the consolation money according to the mental loss year) + (the consolation money according to the mental loss). Accordingly, the defendant is obligated to compensate the plaintiff pursuant to Article 2 of the State Compensation Act.

A. The legislative act of this case is in violation of the Constitution since the defendant's National Assembly members' purpose was to prevent the anti-government (which refers to the government) and the contents of each provision are in violation of the Constitution. Thus, it constitutes a tort in itself.

B. The disposition rejecting the reappointment of this case was made on the ground that the Plaintiff did not have any defect in research achievements and student guidance while serving as professor of a university of 00 university, and it was made on the ground that the Plaintiff was not a graduate of a medical college of the highest age among the persons to be reappointed, and that it was made without presenting specific standards for whether to be reappointed to the Plaintiff and without giving an opportunity to state his opinion. Thus, the disposition rejecting the reappointment of this case made by the president of the 00 university of the Defendant affiliated with the Defendant intentionally or by negligence in performing duties of examining whether to be reappointed to the Plaintiff. Thus, it constitutes a tort.

A. The part on the legislative act of this case

As to whether the legislative act of this case constitutes an act of violation of the law under Article 2 (1) of the State Compensation Act, the National Assembly is a state agency which generally takes the role of forming a multilateral and uniform state will in accordance with the principle of majority through discussions adopted by the Constitution, and in principle, a member of the National Assembly participating in the process is in a political relationship with the whole of the people and does not have a legal obligation in response to the rights of each citizen. Thus, although the legislative act of a member of the National Assembly clearly violates the contents of the Constitution, it cannot be deemed that the legislative act of this case constitutes an act of violation of the law under Article 2 (1) of the State Compensation Act unless the National Assembly is special cases like the legislative act of this case (see, e.g., Supreme Court Decisions 2004Da3469, May 29, 2008; 96Da5115, Jun. 13, 1997; 207, etc.).

Therefore, the plaintiff's claim based on the premise that the legislative act of this case constitutes a violation of law under Article 2 (1) of the State Compensation Act is without merit, and it is not reasonable to examine the remaining issues.

B. Part on the disposition to refuse reappointment of the instant case (based on whether the president of 00 university intentionally or by negligence is determined)

(1) Even if a disposition rejecting reappointment by a person who has the authority to appoint teachers is deemed to have abused or abused discretion and constitutes an unlawful act, in order to hold liability for damages on the grounds that it constitutes a tort, it shall be recognized that the relevant disposition rejecting reappointment was caused intentionally or by negligence by the person who has the authority to appoint teachers. In order to recognize this point, it shall be determined by taking into account the contents and nature of the grounds for refusing reappointment, the degree of contribution of the relevant teacher in the process of review of reappointment, the degree and degree of such refusal, the existence of the grounds for the refusal of reappointment, other than the grounds for refusal of reappointment, and the contents thereof, and the whole progress of the examination, whether there is a substantial reason for imposing liability for damages on the person who has the authority to appoint teachers, in addition to the grounds for refusal of reappointment.

However, the Constitutional Court Order 200Hun-Ba26 delivered on February 27, 2003 (hereinafter "203Hun-Ba26 delivered on April 22, 2003") and the Supreme Court en banc Order 2000Du7735 delivered on April 22, 2004 (hereinafter "the Supreme Court Decision of 2004") and the Constitutional Court delivered on April 22, 2004, which held that the State, public universities, or private universities, appointed by the fixed-term appointment system for university faculty members, under the legislative act of this case, were forced to be reappointed, or the term of appointment is merely merely in the form of a continuous renewal of the appointment contract, and the existence of a right to demand fair review based on reasonable standards is generally understood as an act of free appointment of the person who is not subject to judicial review, and thus, the Supreme Court Decision 2000Du77340 delivered on April 23, 200 or 200 delivered on the basis of such change in the law.

(2) Next, as long as the existence of the right to file an application for review of reappointment by a judicial institution as above is confirmed, there is room for damages if the person who has the authority to appoint teachers does not resume the procedure for review of reappointment of the relevant teacher, even if the previous disposition of rejection of reappointment constitutes an unlawful case.

However, the procedure of reappointment is ordinarily conducted in the order of application for reappointment, examination of reappointment, and determination of whether to be reappointed, and the disposition of refusal of reappointment is premised on the intention of the application for reappointment, and if the disposition of refusal of reappointment has already been taken in the examination of reappointment pursuant to Article 9(3) of the Addenda of the Public Educational Officials Act (amended in 1975) and Article 9(2) and Article 9(3) of the Addenda of the Public Educational Officials Act (amended in 1975), the procedure of reappointment shall be deemed completed in accordance with the general concept of the parties. Therefore, even if the disposition of refusal of reappointment is unlawful as procedural or substantive reasons and the person who has the authority to appoint the relevant teacher has the duty to examine the reappointment of the relevant teacher, if the violation of

Therefore, even if it is confirmed that there was a right to apply for review of reappointment against a national faculty member in the National University of 2003 or the Supreme Court decision in 2004, it is not reasonable to promptly give any legal disadvantage to a person with the right to appoint teachers on the ground of nonperformance of the duty to review, and the liability of the person with the right to appoint teachers on the ground of unlawful rejection of reappointment can be limited to only after the objective confirmation of the intention to apply for review of resignation of the relevant teacher (see Supreme Court Decision 2007Da42433, supra).

(3) In the instant case, even if the Plaintiff’s rejection disposition was unlawful, it should be recognized that it was caused intentionally or negligently by the president of 10 university in order to constitute a tort. In light of the legal principles as seen earlier (1) and (2), it cannot be deemed that the president of 10 university had raised an objection or negligence with the president of 10 university at the time of 2003, unless there were special circumstances as to the rejection disposition of reappointment, which was made on February 2, 1976, more than before the 2003 decision of inconsistency with the Constitution. Furthermore, after the 2003 decision of inconsistency with the Constitution in 2003 or the Supreme Court decision in 2004, the time when the Plaintiff’s refusal to re-election was confirmed based on the above factual relations, and since February 28, 2004, after the Plaintiff reached the retirement age, there was no evidence to deem that the Plaintiff’s refusal to re-election had reached the retirement age prior to the Plaintiff’s refusal or revocation of the appointment.

Therefore, the Plaintiff’s claim based on the premise that the president’s intentional act or negligence on the part of the president of the OOuniversity regarding the refusal of reappointment and the maintenance of refusal of reappointment cannot be accepted without examining the remainder.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Maximum (Presiding Judge)

Cho Ho-ho

Efficacy