[1] The scope of the inconsistency with the Constitution under the main sentence of Article 53-2 (3) of the former Private School Act and the scope of the application of the amended provisions of the current Private School Act

[2] The case where there is a benefit in filing a lawsuit to refuse the reappointment of a faculty member of a private university who has been appointed as a fixed-term teacher and whose term of appointment expires, and seek confirmation of invalidity

[3] Whether a private university teacher appointed as a fixed-term teacher loses his status as a university faculty member upon expiration of the term of appointment (affirmative with qualification)

[4] The case holding that, although a private university teacher whose reappointment is refused is based on the premise that he maintains his status as a university faculty member even after the expiration of his term of appointment, a private university teacher who is eligible to be reappointed is entitled to claim compensation for damages equivalent to wages on the ground that his refusal to be reappointed constitutes a tort in case where he is illegally denied his reappointment if he was subject to lawful examination of reappointment

[1] As long as the Constitutional Court has made a decision of inconsistency with the Constitution as to a certain legal provision and has the legislative discretion to establish the legislative body with the discretion to revise or abolish the legal provision constitutionally, the legislative amendment and the scope of retroactive application depends on the legislative discretion as a matter of principle. However, considering the purport of the Constitutional Court's ruling of inconsistency with the Constitution as to Article 53-2 (3) of the former Private School Act (amended by Act No. 6004 of Aug. 31, 1999) or the guarantee of effectiveness of specific norm control in the adjudication of inconsistency with the Constitution as to the above legal provision, the above legal provision has to be unconstitutional as to the above case and the case pending in the court as at the time of the above decision of inconsistency with the Constitution as to the above legal provision, even if these cases are not included in the scope of the application of transitional measures under Article 53-2 (2) of the former Private School Act, it shall be deemed that the previous legal provision cannot be applied as it is unconstitutional and that the current provisions of the Private School Act apply as it.

[2] In light of the provisions of Article 53-2 (4) through (8) of the current Private School Act, a teacher of a private university who is appointed as a fixed-term teacher and whose term of employment has expired shall be entitled to a fair examination based on reasonable standards as to whether he/she is reappointed, barring any special circumstances, if he/she satisfies the above criteria after undergoing a fair examination based on his/her ability and qualities as a teacher. Therefore, a decision to refuse the reappointment of a teacher of a private university whose term of appointment has expired by the person who has the right to appoint and dismiss and a notification that affect the legal relationship of the university faculty member, and thus, there is a conflict between the person who has the right to appoint and dismiss and the person who has the right to appoint and dismiss, to seek the confirmation of refusal of the reappointment

[3] Unless there are special circumstances, such as the articles of association, personnel regulations, or employment contracts are enforced to be reappointed, or repeated employment contracts are renewed, a private school teacher whose employment period expires shall lose his status as a university faculty member upon expiration of his employment period.

[4] The case holding that a private university teacher whose reappointment has been refused shall not be permitted to seek wages from the private university teacher on the premise that he/she maintains his/her status as a university faculty member even after the expiration of his/her term of appointment; however, the private university teacher who has been appointed as a fixed-term teacher under the current Private School Act and whose term of appointment has expired shall have the right to demand a fair examination for reappointment, so if a private university teacher who had been allowed to be reappointed if he/she had undergone a lawful examination for reappointment in accordance with the standards for reappointment under the current Private School Act was illegally refused to be reappointed, such decision to refuse

[1] Article 53-2 (3) of the former Private School Act (amended by Act No. 6004 of Aug. 31, 1999); Article 53-2 (3), (4), (5), (6), (7), and (8) of the Private School Act; Article 53-2 (4), (5), (6), (7), and (8) of the Addenda (amended by Act No. 750 of Jan. 27, 2005) / [2] Article 53-2 (4), (6), (7), and (8 of the Private School Act; Article 248 of the Civil Procedure Act / [3] Article 53-2 (3) of the Private School Act / [4] Article 53-2 (3), (4), (5), (6), (7), and (8) of the Private School Act; Article 750 of the Civil Act

[1] Supreme Court Decision 9Da3358 delivered on April 2, 2002 (Gong2002Sang, 1059) Supreme Court Decision 2000Da62476 delivered on May 14, 2002 (Gong2002Ha, 1389) Supreme Court Decision 2002Da21882 delivered on November 8, 2002 (Gong2003Sang, 29) Constitutional Court en banc Decision 2002Hun-Ba14, 32 delivered on December 18, 203 (Hun-Ga8, 755)

Plaintiff

School juristic persons, the Korea National Institute of Corruption

Gwangju High Court Decision 2003Na232 delivered on September 3, 2003

The judgment of the court below is reversed, and the case is remanded to Gwangju High Court.

The grounds of appeal are examined.

1. The measure of the court below

According to the reasoning of the judgment below, the court below, based on the adopted evidence, found that the defendant was appointed as a full-time lecturer at a military junior college on March 1, 1984 and promoted to the six-year teaching year on April 1, 1996, and decided not to be reappointed by holding a teachers' personnel committee on August 12, 2002, and notified the plaintiff on August 31, 2002 of the expiration of the term of appointment as of August 27, 2002, and affirmed the judgment of the court of first instance that dismissed the plaintiff's claim for the payment of wages after the expiration of the term of appointment on the ground that there was no interest in the lawsuit seeking confirmation of the refusal of reappointment and that there was no new legal effect between the plaintiff and the defendant on this ground.

2. Judgment of the Supreme Court

However, the court below's measures cannot be maintained for the following reasons:

A. Amendment of the Private School Act and retroactive effect of the decision of inconsistency with the Constitution

(1) The Constitutional Court shall decide on February 27, 203 that the provisions of the Constitutional Court of Korea adopted the system of appointment without guaranteeing retirement age in itself in the case of constitutional complaint 200Hun-Ba26, but shall not be deemed unconstitutional. However, it shall be deemed that the provisions of Article 53-2 (3) of the former Private School Act (amended by Act No. 4226, Apr. 7, 199; hereinafter referred to as the "No. 202Hun-Ba14, Dec. 14, 2003") stipulate that the term of appointment of teachers shall be 5 months before the expiration of the term of appointment, and that the new teachers shall not be subject to review on their status in accordance with the provisions of Article 53-2 (3) of the former Private School Act (amended by Act No. 5274, Apr. 7, 199; hereinafter referred to as the "No. 527, Nov. 13, 2003").

(2) As long as the Constitutional Court makes a decision of inconsistency with the Constitution as to a certain legal provision and imposes the legislative discretion on the legislative body to revise or abolish the legal provision constitutionally, the legislative amendment and the scope of retroactive application depends on the legislative discretion in principle. However, considering the purport of the above decision of inconsistency with the Constitution as to the provisions of the Private School Act or the guarantee of effectiveness of specific norm control in the adjudication of inconsistency with the Constitution as to the above provisions of the Private School Act, at least the above decision of inconsistency with the Constitution as to the pertinent case and the cases pending in the court as to which the above decision of inconsistency with the Constitution was made, the above decision of inconsistency with the Constitution as to the above provisions of the Private School Act as to the above cases shall affect the retroactive effect. Thus, even if these cases are not included in the scope of transitional measures as referred to in paragraph (2) of the Addenda of the current Private School Act, the previous provisions of the law shall not be applied as it is, and the provisions of the current Private School Act where the unconstitutionality has been removed shall be applied (see Supreme Court Decisions 99Da35358, Apr. 22, 200028). 2028

According to the records, the plaintiff's decision of inconsistency with the Constitution was rendered on February 27, 2003 in the Constitutional Court case 2000Hun-Ba26 constitutional complaint, which is substantially identical to the provisions of this case, and Article 53-2 (3) of the former Private School Act which was amended on April 7, 1990, began to submit the above decision of inconsistency with the Constitution to the court of original judgment on July 9, 2003, and thereafter, the provisions of this case should not be applied since they were unconstitutional. Accordingly, the plaintiff's decision of inconsistency with the Constitution was made on December 18, 2003 and the above provision of this case should not be applied until the expiration of the term of office of the plaintiff 9 under the former provisions of Article 9 of the Private School Act.

B. As to the lawsuit seeking nullification confirmation

Furthermore, Article 53-2 (3) of the former Private School Act (amended on January 13, 1997) provides that the term of office of a college teacher may be fixed and appointed as prescribed by the articles of association of the relevant school juristic person with regard to whether a lawsuit seeking confirmation of invalidity of the decision rejecting the reappointment of the relevant teacher. However, Article 53-2 (4) through (8) of the current Private School Act, which applies to this case based on the retroactive effect of the decision of inconsistency with the Constitution as to the above provision, provides that the notice of prior application for deliberation on the reappointment of the relevant teacher, the right to request prior deliberation on the reappointment of the relevant teacher, the right to request prior deliberation on the grounds of refusal of reappointment of the person who has the authority to appoint and dismiss the relevant teacher, the right to request prior deliberation on reappointment in accordance with objective standards, the right to submit opinions and methods of dissatisfaction in the process of review on reappointment of the relevant teacher, and the right to request fair determination and rejection of the term of office of the relevant university teacher, the term of office of which expires, unless there are special circumstances.

Therefore, in this case where Article 53-2 (4) through (8) of the current Private School Act applies retroactively to this case, as seen earlier, the plaintiff, whose term of appointment has expired as a professor of a private university, has the right to demand a fair review in accordance with reasonable standards as to whether he is reappointed under the current Private School Act, and thus there is a benefit in the lawsuit to seek a confirmation of the rejection of reappointment and the confirmation of the notification in this case, the validity of which is disputed between the defendant and the defendant. Therefore, the court shall consider whether the defendant has unlawfully refused reappointment even though the plaintiff is eligible to be reappointed in accordance with the procedure and criteria for reappointment under each of the above provisions, and the court below shall apply Article 53-2 (3) of the former Private School Act to this case, which is subject to the decision of inconsistency with the Constitution, and thereby has maintained the judgment of the first instance court which dismissed this part of the lawsuit on the grounds that there is no benefit in the lawsuit seeking a confirmation of nullity of the rejection of reappointment. Accordingly, this part of the appeal is justified.

C. As to the claim for payment of wages

The Constitutional Court held that the fixed-term appointment system itself cannot be deemed unconstitutional in the decision of inconsistency with the Constitution on Article 53-2 (3) of the former Private School Act, and accordingly, the current Private School Act also maintains the current system for appointment of university faculty members, barring special circumstances, such as forced renewal of the articles of association, personnel regulations, or employment contracts, or repeated renewal of employment contracts, a teacher of a private school whose term of appointment expires shall lose the status of university faculty members upon expiration of the term of appointment.

Therefore, it is not permissible for a teacher of a private school whose reappointment is denied to seek his/her wage on the premise that he/she maintains his/her status as a university faculty member even after the expiration of his/her term of appointment. However, as seen earlier, a teacher of a private school who has been appointed as a fixed-term teacher under the current Private School Act and whose term of appointment expires shall have the right to request a fair examination for reappointment. Therefore, if a teacher of a private school, who could have been reappointed if he/she had undergone a lawful examination for reappointment in accordance with the standards for reappointment prescribed under the current Private School Act, is illegally refused to

According to the records, the plaintiff is seeking confirmation of invalidity of the decision to refuse reappointment as well as payment of wages after the expiration of the term of appointment. If the claim for payment of wages is premised on maintaining the status as a teacher, such claim shall not be accepted. However, the plaintiff does not assert that the status as a teacher still remains maintained even after the expiration of the term of appointment until the closing of argument in the court below, and rather, the purport of appeal in the petition of appeal is that "a claim for payment of 4,668,03 won per month from September 1, 2002, which is after the expiration of the term of appointment, to the time when he is reappointed" (Records 238 pages), and it is also deemed that the plaintiff claims for payment of wages on the premise that he loses his status as a teacher until he is reappointed after the expiration of the term of appointment (Records 238 pages). Thus, even though the plaintiff is legally entitled to reappointment, the plaintiff's claim for payment of wages does not include the purport of seeking compensation for damages equivalent to the amount of wages where the defendant's decision

Therefore, the court below should decide whether the plaintiff can be reappointed in accordance with the criteria for review of reappointment prescribed by the current Private School Act, if such meaning includes the purport of seeking compensation equivalent to the amount of remuneration in the purport of seeking compensation for the plaintiff by appropriately using the right of explanation. However, the court below decided whether the plaintiff's right of explanation includes the purport of seeking compensation equivalent to the amount of compensation for the plaintiff's compensation for the damages equivalent to the amount of compensation, which is based on the premise that the plaintiff's status is maintained and his status is naturally lost due to the expiration of the term of appointment. The court below dismissed the plaintiff's claim for the payment of compensation for the reason that the plaintiff's claim for the payment of compensation for the amount of compensation for the amount of compensation for the amount of compensation for the plaintiff's failure to complete deliberation or exercise the right of explanation on the meaning of the request for payment of compensation for the amount of compensation for the amount of compensation for the plaintiff's appeal for the payment of compensation for the amount of compensation for the plaintiff's failure to submit clear grounds for appeal as to the above part.

3. Conclusion

Therefore, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)