[1] The scope of the retroactive effect of the decision of inconsistency with the Constitution as to Article 53-2 (3) of the former Private School Act

[2] Whether there is a benefit in legal action to seek the decision of rejection of reappointment and the confirmation of invalidity of the notification for a civil lawsuit against a teacher of a private university who has been appointed as a fixed-term teacher and whose term of appointment expires

[3] Whether the appointment authority's discretionary act is the case where the term of appointment expires for a private university teacher (affirmative)

[4] The validity of a decision to refuse the reappointment of a faculty member of a private university, the criteria for determining whether a decision to refuse the reappointment is a deviation or abuse of discretionary power, and the burden of proof (=person who asserts the invalidity)

[5] 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 liability for damages caused by the tort (i.e., loss of objective legitimacy) and the criteria for its determination

[6] The amount of damages (i.e., the amount equivalent to the wages during the period of re-employment) and the method of determining the scope of the available period of service where a decision to refuse re-election of a university faculty member

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

[8] 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 rejection of reappointment

[9] Whether a school juristic person's liability for damages caused by illegal rejection of reappointment after a decision of inconsistency with the Constitution as to Article 53-2 (3) of the former Private School Act was rendered can only be held at the time when the applicant for reexamination becomes objectively confirmed (affirmative)

[1] Article 53-2(3) of the former Private School Act (amended by Act No. 5274, Jan. 13, 197); Article 53-2(3), (5), (7), and (8) of the former Private School Act (amended by Act No. 7802, Dec. 29, 2005); Article 53-2(3) of the former Private School Act (amended by Act No. 707, Jan. 27, 2005); Article 47 of the Constitutional Court Act / [2] Article 50 of the former Private School Act (amended by Act No. 780, Dec. 29, 2005); Article 57 of the former Private School Act (amended by Act No. 7802, Dec. 29, 2005); Article 53-2(3) of the former Private School Act (amended by Act No. 7801, Dec. 7, 2007)

[1] [2] Supreme Court Decision 2003Da52647 Decided March 9, 2006 (Gong2006Sang, 569) / [1] Supreme Court Decision 2007Da9009 Decided February 1, 2008 (Gong2008Sang, 306) / [1] Supreme Court Decision 9Da3358 Decided April 2, 2002 (Gong202Sang, 100Da62476 Decided May 14, 2007 (Gong2002Ha, 106Ha, 1389) / [207Da97979 Decided July 29, 207] 205 (Gong679 decided July 29, 207)

Plaintiff (Attorney Yellow-il, Counsel for the plaintiff-appellant)

Defendant School Foundation (Law Firm Roon, Attorney Oh Jeong-soo, Counsel for defendant-appellant)

Seoul High Court Decision 2006Na4535 delivered on June 23, 2006

The part of the lower judgment against the Defendant regarding the claim for damages is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal and the Defendant’s remainder of appeal

The plaintiff and defendant's grounds of appeal are examined together (if the supplemental appellate brief was not timely filed, to the extent of supplement in case of supplemental appellate brief).

1. As to the Defendant’s first ground of appeal

A. Article 53-2 (3) of the former Private School Act (amended by Act No. 426 of Apr. 7, 1990 and amended by Act No. 5274 of Jan. 13, 197; hereinafter “former Private School Act”) provides that “A college teacher may be appointed or dismissed within a fixed period as prescribed by the articles of association of the relevant school juristic person”. In the case of constitutional complaint on February 27, 2000Hun-Ba26, the Constitutional Court shall not be deemed unconstitutional for the legislative person to refuse reappointment, but shall specify the grounds for refusal of reappointment, the opportunity of stating reappointment, prior notice of rejection of reappointment, and procedure for appeal, etc., and shall not be required to determine the period of appointment of the relevant teacher before the expiration of the term of appointment, and shall not be required to notify the new teachers of the fact that the new term of appointment expires by Act No. 5327, Feb. 27, 200>

B. As long as the law or provision of a law decided as unconstitutional is not related to punishment, it shall lose its effect from the date on which the decision is made (Article 47(2) of the Constitutional Court Act). Since the Constitutional Court makes a decision of inconsistency with the Constitution as to any provision of a law and imposes the legislative discretion on the legislative discretion to revise or abolish the provision of the law, the retroactive application of the law and the scope of retroactive application shall, in principle, depend on the legislative discretion. However, considering the purport of the decision of inconsistency with the Constitution or the aspect that the effectiveness of specific norm control in the adjudication of inconsistency with the Constitution is guaranteed at the time of the above decision of inconsistency with the Constitution and the above case pending in the court, the retroactive effect of the decision of inconsistency with the Constitution shall be limited to the case in which the above provision of the Private School Act has become unconstitutional, and even if the case does not include it within the scope of the transitional measures under paragraph (2) of the Addenda of the amended Private School Act, it shall not be applied as it is, and the provisions of the amended Private School Act shall be applied (see Supreme Court Decision 20036.4. 294.36.204.

C. Meanwhile, separate from the amended Private School Act on July 13, 2005, Article 7583 of the Special Act (hereinafter “Special Act on Remedies for Deserting the Appointment System for University Faculty Members”) was enacted and enforced from October 14, 2005. The Special Act on Remedies for Remedies provides that, within the period of appointment of a national, public, or private university, an opportunity to review the reappointment of a faculty member excluded from reappointment was granted, the special Act for the protection and remedy of the rights and interests of university faculty members excluded from reappointment (Article 1) and the special Act for the protection of the rights and interests of university faculty members excluded from reappointment and the relief therefrom (Article 7), the Act provides that, within the 1st day of July 23, 1975, whether the appointment period of a faculty member excluded from reappointment has expired (including the case where the Committee has received a favorable judgment in a lawsuit regarding the exclusion from reappointment, removal, or dismissal of a faculty member, it shall be justified in the provision on the examination of appointment of a faculty member, which does not meet the standards for review.

D. In light of the provisions of the amended Private School Act and the Special Act on Relief, it is deemed that a teacher of a private university who was appointed as a university faculty term appointment system and whose term of appointment has expired after undergoing a fair examination based on reasonable standards as to his or her ability and qualities as a teacher has the right to demand a fair examination based on reasonable standards as to whether he or she is reappointed, barring any special circumstances. Thus, the decision and notification that a person who has the right to appoint and dismiss a teacher of a private university, whose term of appointment has expired, refuses the reappointment of a teacher of a university upon expiration of his or her term of appointment, affects the legal relationship of the university faculty, and thus, the person who has the right to appoint and dismiss, and the person who has the right to appoint and dismiss, has the interest in filing a lawsuit seeking the rejection decision and the confirmation of invalidity of such notification through civil litigation (see Supreme Court Decisions 203Da52647, Mar. 9, 206; 2007Da909, Feb. 1, 2008).

E. Therefore, even if a decision of inconsistency with the Constitution was rejected on August 30, 1996, before the decision of inconsistency with the Constitution was rendered, the plaintiff's interest in the lawsuit seeking confirmation of invalidity of the decision of refusal of reappointment is recognized as civil litigation unless there are special circumstances. Thus, the defendant's ground of appeal disputing this cannot be accepted.

2. As to the defendant's second ground for appeal

A. In light of the constitutional provisions and the purport of education-related Acts and subordinate statutes, a teacher of a private university must basically have the ability and qualities to maintain dignity as a teacher, who is a virtue in the relevant Acts and subordinate statutes and the articles of incorporation of the relevant school juristic person. This also applies to the case of reappointment (see Supreme Court Decision 2007Da9009, Feb. 1, 2008, etc.). Since it is necessary to examine whether the term of appointment of a university faculty expires after considering such various circumstances, it is necessary for the person who has the appointment authority to re-appoint the teacher whose term of appointment expires, the determination of whether to appoint the teacher after the expiration of the term of appointment belongs to discretionary action based on the determination of the appointment authority (see Supreme Court Decisions 96Da7069, Jun. 27, 1997; 97Da25477, Dec. 23, 197).

However, a decision to refuse reappointment refers to a case where such decision violates the principle of proportionality or the principle of equality as a result of the loss of fairness in light of the negative evaluation factors which are contrary to the principle of public interest or based on the determination of rejection of reappointment without reasonable grounds, and thus violates the principle of equality. This should be comprehensively determined according to specific cases, including the content and nature of negative facts, and the degree of conformity with the criteria for examination of reappointment. The party asserting the ground for invalidation of the decision to refuse reappointment due to deviation or abuse of discretionary power bears the burden of proof (see Supreme Court Decision 2007Da9009, Feb. 1, 2008).

B. According to the reasoning of the judgment below, the court below acknowledged the plaintiff's activities prior to the decision to refuse reappointment of this case and the progress of the examination of reappointment against the plaintiff, and determined that the defendant's decision to refuse reappointment of this case against the plaintiff, which was issued as a result of the examination of reappointment, was null and void since the evaluation results of the defendant's Buddhist cultural university head, who was the appraiser of the plaintiff, were conducted arbitrarily through the subjective evaluation of the evaluator, and the evaluation results of the Minister's evaluation of the Minister of Education of the confirmer, was recognized as having an obvious error and deviation from discretion, and did not undergo legitimate evaluation of the provisions related to reappointment, such as

In light of the above legal principles, the above determination by the court below is acceptable. There are parts inappropriate in the judgment of the court below concerning the method of review or burden of proof as to the grounds for invalidation of the decision rejecting reappointment, but there is no influence on the conclusion of the judgment. Defendant’s ground of appeal as to deviation or abuse of discretionary power

3. As to the Defendant’s third ground of appeal

A. Even if a school juristic person’s decision on refusal of reappointment regarding a school juristic person’s liability for damages caused by illegal refusal of reappointment is deemed to deviate from or abuse of discretionary power and its judicial effect is denied, such refusal of reappointment should be recognized as a result of intention or negligence of the school juristic person in order to compensate for property damage to the school juristic person on the ground that such decision constitutes tort. To this end, the school juristic person’s general standard should be deemed to have lost objective legitimacy in determining that the decision on refusal of reappointment has lost objective legitimacy. In such a case, whether the decision on refusal of reappointment has lost objective legitimacy should be determined based on the following circumstances: the content and nature of the ground for refusal of reappointment; the degree of contribution of the relevant teacher in the course of examination of reappointment; the explanation or degree thereof; the existence of grounds for refusal of reappointment in addition to the specified grounds for refusal of reappointment; the contents thereof; and the whole progress of examination.

Where tort of a school juristic person is recognized through such determination, a teacher of a private university who could have been reappointed if he/she had been duly reappointed may claim for property damage equivalent to his/her wages during the period during which he/she could have been appointed as a teacher if he/she had not committed such illegal act (see Supreme Court Decision 2003Da262, Mar. 9, 2006, etc.). The scope of the period during which he/she could be reappointed should be determined individually by comprehensively taking into account such factors as the degree of general strictness of the standards for examination for reappointment of the relevant university and the criteria for examination by academic area (personal, social, natural department, etc.). The scope of the period during which he/she could be reappointed should not be limited to the amount equivalent to the wages during the pertinent period during which he/she refused reappointment of the relevant university.

Meanwhile, in order for a private university teacher to claim consolation money on the ground that he was suffering from a separate mental pain other than property damage as mentioned above due to the illegal refusal of reappointment, if the school juristic person intentionally refuses to be reappointed on the ground of another name under the intention to find the relevant teacher in the university even though there is no ground for refusal of reappointment, or if it objectively apparent that the fact which was the ground for refusal of reappointment does not constitute the ground for examination of reappointment or cannot be considered as the ground for refusal of reappointment under the personnel regulations, etc., and with due care, it is obvious that the abuse of discretion by the university on the examination of reappointment is not acceptable under our sound social norms or social norms (see, e.g., Supreme Court Decisions 95Da6823, Apr. 23, 196; 2006Da30730, Jun. 26, 2008).

B. As to the liabilities of the school juristic person before the ruling of inconsistency with the Constitution was rendered in 2003

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 Constitutional Court, are understood as the act of free discretion of the person who is excluded from judicial review, unless there are special circumstances such as the fact that there are mandatory provisions on the reappointment of faculty members of national universities, public universities, and private universities, who are appointed by the fixed-term appointment system for university faculty members, or that there are continuous renewal of the appointment contract, and thus there is a "influent employment relationship."

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 2003, is deemed as having been able to recognize or avoid the outcome of the rights or infringement of legal interests of the private school teachers, and thus, the liability for damages is not a requirement to comply with the generally interpreted norm or an expectation to fulfill the duty of due diligence. Unless there are special circumstances, the circumstances are taken into account, such as: (a) 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; and (b) the right to file an application for review of reappointment, which is held by the private school juristic person before the enforcement of the amended Private School Act, and thus, (c) the right to file a petition for damages with the school juristic person, barring any special circumstances, shall not be held liable for damages.

In this regard, Supreme Court Decision 2003Da3262 Decided March 9, 2006 ruled that, as long as the amended Private School Act applies retroactively, the illegality of refusal of reappointment should be deliberated again as an objective requirement for establishing tort liability for tort liability pursuant to the new criteria for review of reappointment under the amended Private School Act, as long as the amended Private School Act applies retroactively. Supreme Court Decision 2003Da52647 Decided March 9, 2006 also applies retroactively the amended Private School Act: (a) it was reversed on the ground that the court below understood the claim for payment of money only as a claim seeking compensation on the premise that the status as a teacher is maintained; and (b) it was reversed on the ground that the court below did not properly examine whether the claim for payment of money is asserted for compensation or not; and (c) each of the above Supreme Court Decision 2003Da52647 Decided March 9, 2006 is different from that of the previous Private School Act; and (d) it did not separately determine the subjective elements of tort.

C. As to the liabilities of school juristic persons after the decision of inconsistency with the Constitution was rendered in 2003

As seen earlier, the Constitutional Court rendered a ruling of inconsistency with the Constitution in 2003 on the grounds that the legislative absence of the procedure for the review of reappointment and the procedure for remedy after the fact that the former Private School Act violated Article 31(6) of the Constitution, thereby rendering a ruling of inconsistency with the Constitution on the grounds that the legal principle of inconsistency with the Constitution regarding the procedure for review of reappointment and the procedure for remedy after the review of the former Private School Act violates Article 31(6) of the Constitution, the Supreme Court determined that the fixed-term university faculty members should have an opportunity to state their position prior to the revocation of reappointment or an opportunity to refuse the reappointment, and that there should be an institutional device to raise any dispute after the rejection of reappointment. Ultimately, this can be understood as a ruling on the premise that the right to request a fair review of reappointment, which is the right to request a fair review of the reappointment, is recognized, and as long as it has been confirmed by a judicial institution to have the right to request a review of reappointment, it is likely to be liable for damages if a school juristic person still fails to resume the procedure for the relevant teacher whose decision of

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, and the violation of such obligation has an obligation to review the

Therefore, even if it is confirmed that there was a right to apply for review of reappointment to a teacher of a private university, who is subject to the ruling of inconsistency with the Constitution in 2003, it is not reasonable to promptly give a school juristic person any legal disadvantage on the ground of nonperformance of the duty of review as to the disposition of refusal of reappointment in the past, and the liability of the school juristic person due to the illegal refusal of reappointment can be limited to only after the time when the relevant teacher is objectively confirmed. Meanwhile, the pertinent teacher's request for review is expressed through the act of urging or requesting the review directly to the school juristic person, but it can be confirmed by the act of demanding confirmation of invalidity of the decision of refusal of reappointment against the school juristic person.

Furthermore, in order for a school juristic person to be held liable for property damages on the ground that the school juristic person did not resume the procedure for review of reappointment, as seen earlier, notwithstanding the fact that such an applicant for reappointment had been confirmed, the school juristic person's intentional or negligent act should be recognized as well. As such, the school juristic person's failure to resume the procedure for examination of reappointment is not deemed justifiable in the past, and thus, the school juristic person's intentional or negligent act on the ground that the decision of refusal of reappointment was not maintained as it is. Thus, the school juristic person's intentional or negligent act on the ground that the ground for refusal of reappointment was justifiable in the past, the degree of contribution of the relevant school juristic person in the procedure for examination of reappointment, the relevant school juristic person's explanation or degree, the existence or absence of the grounds for refusal of reappointment in the procedure for examination of reappointment, and the entire progress of the examination of reappointment, etc. shall be determined on the basis of whether the school juristic person has lost objective legitimacy by neglecting its duty of care. Furthermore, in order to claim consolation money to a school juristic person on the same ground shall meet the requirements as seen in the foregoing paragraph 3.

D. As to the Defendant’s liability for damages of this case

According to the reasoning of the judgment below and the records, the defendant, after making a decision to refuse reappointment on August 30, 1996, rejected the reinstatement of the plaintiff, and according to the defendant's articles of incorporation, the plaintiff can be found to have arrived at the retirement age (65 years old) after 2020 with the birth of 1955. Meanwhile, in this case, the plaintiff is seeking property and mental damage from the time when the first service is available to the time of reinstatement.

However, the plaintiff can be reinstated until the above retirement age reaches the above retirement age even after the decision of inconsistency with the Constitution was rendered in 2003. As seen above, even though the defendant cannot be liable for damages to the defendant until the decision of inconsistency with the Constitution was rendered in 2003, if the defendant is found to have failed to perform his/her duty of re-examination and such defendant's action is found to have been intentionally or negligently committed, the defendant can be liable for damages. The court below should determine whether the defendant is liable for damages by examining the time when the plaintiff's decision of inconsistency with the Constitution was confirmed after the decision of inconsistency with the Constitution in 2003 and then the defendant still fails to perform his/her duty of re-examination after the decision of inconsistency with the Constitution in 2003.

Nevertheless, the lower court, without examining the Defendant’s intention or negligence, cited the Plaintiff’s claim for damages for the remainder of the judgment period excluding the period of extinctive prescription that expired from the period during which the Defendant was unable to serve as a decision refusal of reappointment, on the premise that the tort was established immediately and the Defendant is liable for damages.

Therefore, the court below erred by misapprehending the legal principles as to the elements for establishing liability for damages caused by refusal of reappointment and the scope of liability for damages caused by the inconsistency with the Constitution of the Republic of Korea, which led to failure to exhaust all necessary deliberations. Thus, the defendant's remaining grounds for appeal cannot be reversed without further review.

4. Plaintiff’s ground of appeal

The plaintiff's ground of appeal can be viewed as the argument cited on the starting point of extinctive prescription on the premise that the defendant's liability for damages was established with respect to the period of decision that the court below did not recognize. However, as seen earlier, the defendant cannot be liable for damages for the period before the decision of inconsistency with the Constitution in 2003 is rendered. Thus, without examining further, the plaintiff's ground of appeal cannot be accepted.

5. Conclusion

Therefore, the part of the lower judgment against the Defendant regarding the claim for damages is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal and the Defendant’s remaining appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Cha Han-sung (Presiding Justice)