[1] In a case where a school foundation's decision to reject the reappointment of a fixed-term university faculty member is deemed to deviate from or abuse the discretion or lack of procedural requirements and its judicial effect is denied, the requirements for compensating for damages caused by the tort (i.e., loss of objective legitimacy) and the criteria for the determination thereof

[2] Requirements for a private university teacher to claim consolation money from mental suffering in addition to property damage caused by illegal refusal of reappointment

[3] The case holding that since the act of refusing the reappointment of a full-time lecturer of a private university appointed as a fixed-term lecturer did not meet the minimum procedural requirements such as notification of the grounds for refusing the reappointment and guaranteeing the opportunity to vindicate such a full-time lecturer, and that the principal of the private university at the time refused the reappointment without any examination under the intention of preventing the full-time lecturer from working at the university although there is no specific grounds for disqualification for reappointment to the full-time lecturer, the act of refusing the reappointment constitutes a tort as it is deemed to abuse and abuse of discretionary power and to have lost objective reasonableness, and further, the abuse of such discretionary power is obvious to be unacceptable under our sound social norms and social norms, the above school juristic person of the private university is liable to compensate the full-time lecturer for not only property damage but also mental damage

[1] Articles 1, 7, and 8 of the Special Act on the Relief of Persons Disqualified for the Appointment of Fixed Faculty Members; Articles 53-2 (3) and (4) of the former Private School Act (amended by Act No. 7352 of Jan. 27, 2005); Article 750 of the Civil Act / [2] Articles 1, 7, and 8 of the Special Act on the Relief of Persons Disqualified for the Appointment of Fixed Faculty Members; Articles 53-2 (3) and (4) of the former Private School Act (amended by Act No. 7352 of Jan. 27, 2005); Articles 750 and 751 of the Civil Act / [3] Articles 1, 7, and 8 of the Special Act on the Relief of Persons Disqualified for the Appointment of Fixed Faculty Members; Article 750 of the former Private School Act (amended by Act No. 7352 of Jan. 27, 2005); Article 75-35 of the Civil Act

[1] [2] Supreme Court Decision 95Da6823 Decided April 23, 1996 (Gong1996Sang, 1552), Supreme Court Decision 2006Da30730 Decided June 26, 2008 (Gong2008Ha, 1046), Supreme Court Decision 2007Da42433 Decided July 29, 2010 (Gong2010Ha, 1728)

Plaintiff (Law Firm Domin, Attorneys Shin Young-young et al., Counsel for the plaintiff-appellant)

Defendant School Foundation (Attorney Lee Jae-soo, Counsel for defendant-appellee)

Gwangju High Court Decision 2006Na2587 Decided December 12, 2008

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

The grounds of appeal are examined.

1. In light of the constitutional provisions and purport of education-related Acts and subordinate statutes regarding the right to receive education and the right to receive education and the status of teaching staff at private universities, it is necessary to basically have the ability and qualities to examine the qualifications of teaching staff members who are virtue of virtue, education for students, observance of education-related Acts and subordinate statutes, and other matters concerning the maintenance of dignity as teaching staff members, and this is also the same (see, e.g., Supreme Court Decision 2007Da909, Feb. 1, 2008). Thus, it is necessary to examine whether the term of appointment of teaching staff expires by taking into account the aforementioned various factors, and thus, it is necessary to appoint a person whose term of appointment expires after being reappointed at 00 or less reasonable guidelines for the exclusion of teaching staff members (see, e.g., Supreme Court Decisions 9Da7069, Jun. 27, 197; 200Da2547, Dec. 23, 1997).

Meanwhile, even if a decision to refuse the reappointment of a school foundation for a fixed-term university faculty member is deemed to have abused or abused the discretionary power as seen above, and its judicial effect is denied, in order to hold the school foundation liable for property damage on the ground that such decision constitutes tort, the refusal of reappointment should be recognized as having been caused intentionally or negligently by the school foundation. For this purpose, in general, the school foundation’s decision to refuse reappointment should be deemed to have lost objective legitimacy by exercising objective duty of care in light of the standard of general university. In such a case, whether such decision to refuse reappointment has lost objective legitimacy should be determined based on whether there exists a substantial reason to assume liability for damages against the university by taking into account the contents and nature of the ground for refusal of reappointment, degree and degree of contribution of the relevant teacher in the process of examination of reappointment, degree and degree of the relevant teacher’s explanation in the process of examination of reappointment, the existence and content of the reason for refusal of reappointment, as well as the whole progress of examination of reappointment, etc.

Furthermore, in order to claim consolation money on the ground that a private university teacher was suffering from property damage other than property damage due to the illegal refusal of reappointment, it should be a case where the abuse of discretionary power in the examination of the reappointment of a university on the ground that the school juristic person intentionally refused to resign on the ground of another name under the intention to find out the university or college even though there is no reason to refuse reappointment, or that the fact which was the ground for refusal of reappointment cannot constitute grounds for examination of reappointment, such as personnel regulations, or cannot be considered as grounds for refusal of reappointment, is objectively apparent and he paid a little attention, even if such circumstance can be easily identified, it is obvious that the abuse of discretionary power in the examination of the reappointment of a university on the ground of refusal of reappointment is not permissible in our sound social norms or social norms (see, e.g., Supreme Court Decisions 95Da6823, Apr. 23, 196; 2006Da30730, Jun. 26, 2008; 203Da437, Apr. 29, 2017).

2. According to the reasoning of the judgment below, the court below found that the defendant's 2-year examination of the above 2-year examination of the defendant's 2-year examination of the defendant's 2-year examination of the defendant's 2-year examination of his employment and the above 2-year examination of the defendant's 2-year examination of the 1-year examination of the 2-year examination of the 2-year examination of the 1-year examination of the 2-year examination of the 2-year examination of the 1-year examination of the 2-year examination of the 2-year examination of the 2-year examination of the 2-year examination of the 200-year examination of the 1-year examination of the 2-year examination of the 1-year examination of the 2-year examination of the 2-year examination of the 1-year examination of the 2-year examination of the 3-year examination of the 1-year examination of the 3-year examination of the 2-year examination of the 20-year examination.

Examining the above facts in light of the legal principles as seen earlier, the defendant's refusal of reappointment against the plaintiff on February 28, 2003 did not meet the minimum procedural requirements such as prior notification of the grounds for refusal of reappointment and guarantee of opportunity to vindicate the case, and the plaintiff does not have any specific grounds for disqualification for reappointment. However, the non-party, the principal of the ○ University, at the time, refused reappointment without any examination under the intention of preventing the non-cooperative plaintiff from working at the ○○ University. Thus, the above refusal of reappointment was deemed to have exceeded and abused discretion and has lost objective legitimacy. Furthermore, the abuse of discretionary power above is clear that it cannot be accepted in our sound social norms or social norms. Accordingly, even if the court below could be reappointed if it could have undergone a fair review based on reasonable criteria unless there were any special circumstances, the defendant's unlawful rejection of the appointment of the plaintiff, and the part that the defendant is responsible for compensation not only for damage to property but also for mental damage, as alleged in the ground for appeal, is justified.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)