[Plaintiff (Counterclaim Defendant), Appellee and Appellant] Plaintiff School Foundation (Attorneys at Law: Jiwon Law Firm, Attorney Choi Kwang-hyu and one other)
[Defendant (Counterclaim Plaintiff), Appellee and Appellant] Defendant 1 and one other (Attorneys at Law: Barun Law Firm, Attorney Han Myeong-su and one other)
[Defendant (Counterclaim Plaintiff), Appellant] Defendant 3
[Defendant (Counterclaim Plaintiff), Appellant and Appellee] Defendant 4 (Attorney at Law: Hwang Byeong-il)
[Court Below] Daegu High Court Decision 2007Na8205, 8212, 8229 rendered on July 4, 2008
[Order]
Among the portions of the judgment below that ruled against Defendants 1 and 2 on the principal claim and counterclaim, the portions concerning the claim for declaration of non-existence of the obligation for damages and the claim for damages regarding damages arising on or after February 27, 2003; among the portion that ruled against Defendant 3 on the counterclaim, the portion concerning the claim for confirmation of invalidity of the decision to deny reappointment; and among the portions concerning Defendant 4 on the principal claim and counterclaim, the portions concerning the claim for declaration of non-existence of the obligation for damages and the claim for damages, are all reversed, and this part of the case is remanded to the Daegu High Court. The remaining appeals by the Plaintiff (Counterclaim Defendant) and Defendants 1 and 2 are each dismissed.
[Reasoning]
The grounds of appeal of the Plaintiff (Counterclaim Defendant, hereinafter referred to simply as the "Plaintiff") and the Defendants (Counterclaim Plaintiffs, hereinafter referred to simply as the "Defendants") are examined (including, to the extent supplementing the grounds of appeal, the supplementary briefs on grounds of appeal submitted after expiration of the period for submission of grounds of appeal).
1. Determination on the grounds of appeal of the Plaintiff and Defendant 3 regarding the claim for confirmation of invalidity of the decision to deny reappointment
A. The rendering of the relevant decision of unconstitutionality-in-conformity and the enactment/amendment of related statutes
Article 53-2, Paragraph 3 of the former Private School Act (사립학교법, amended by Act No. 4226 on April 7, 1990, before amendment by Act No. 5274 on January 13, 1997) and the first sentence of Article 53-2, Paragraph 3 of the former Private School Act (amended by Act No. 5274 on January 13, 1997, before amendment by Act No. 6004 on August 31, 1999) provided that "faculty members of higher education institutions may be appointed and dismissed for a fixed term as provided by the articles of incorporation of the relevant school foundation." Regarding this provision, the Constitutional Court rendered decisions of unconstitutionality-in-conformity (헌법불합치결정) in Decision 2000Hunba26 rendered on February 27, 2003, and Decision 2002Hunba14, 32 (consolidated) rendered on December 18, 2003 (hereinafter, the decision rendered first, on February 27, 2003, is referred to as the "2003 Decision of Unconstitutionality-in-Conformity").
Accordingly, Article 53-2 of the Private School Act was amended by Act No. 7352 on January 27, 2005 (hereinafter the "Amended Private School Act"). While the fixed-term appointment system for university faculty, which was recognized as a constitutionally permissible system in the 2003 Decision of Unconstitutionality-in-Conformity, was maintained as is (Paragraph 3), Paragraphs 4 through 8 newly provided for pre-decision procedures related to reappointment of such faculty and post-decision remedial procedures against decisions denying reappointment. Meanwhile, pursuant to Supplementary Provision Article 1, these provisions do not apply retroactively but apply from January 27, 2005, the effective date of the Amended Private School Act, except that Supplementary Provision Article 2 provides the following transitional provision: "With respect to faculty members of higher education institutions who were appointed for a fixed term under the previous provisions and who remain in service at the time the amended Act enters into force, the amended provisions shall apply." Separately from the Amended Private School Act, the Special Act for the Relief of Persons Denied Reappointment under the Fixed-Term Appointment System for University Faculty (대학교원 기간임용제 탈락자 구제를 위한 특별법, hereinafter the "Special Relief Act") was enacted as Act No. 7583 on July 13, 2005, and took effect on October 14, 2005, as a special law aimed at protecting the rights and interests of, and providing relief to, university faculty members who were unfairly denied reappointment, by granting an opportunity for re-examination for reappointment to faculty members of national, public, and private universities who were denied reappointment under the fixed-term appointment system for university faculty between July 23, 1975 and the day before the effective date of the Amended Private School Act.
B. Regarding the grounds of appeal concerning grounds for invalidity of the decision to deny reappointment in this case
Article 31, Paragraph 1 of the Constitution (헌법) provides that all citizens have the right to receive an equal education according to their ability, thereby establishing the right to receive education as a constitutional right; meanwhile, to realize this right, Article 31, Paragraph 4 of the Constitution provides that the autonomy, professionalism, political neutrality of education and the autonomy of universities shall be guaranteed as provided by law, and Article 31, Paragraph 6 of the Constitution provides for the principle of statutory regulation (법정주의) of the education system and the status of teachers. This reflects our Constitution's intent, as set forth in its Preamble and Chapter 1 General Provisions, to realize through education the constitutional ideal of establishing a free and cultural democratic welfare state that contributes to permanent world peace and the common prosperity of mankind. Education aims to foster students' sound knowledge and character by transmitting the results of academic research and by guiding and teaching them, and teachers who undertake such education must serve as the agents of the public education system who cultivate in students, who will lead future society, the ability to live independently (see Constitutional Court Decision 2000Hunba26 rendered on February 27, 2003, and others).
The legal nature of a contract for the appointment of a private school teacher is a private-law employment contract (see Supreme Court Decision 95Da11689 rendered on July 30, 1996, and others). The Constitutional Court, in its 2003 Decision of Unconstitutionality-in-Conformity regarding Article 53-2, Paragraph 3 of the former Private School Act, determined that the fixed-term appointment system itself could not be deemed unconstitutional, and accordingly, the fixed-term appointment system for university faculty remains in place under the current Private School Act as well. In light of these circumstances, absent special circumstances such as a mandatory reappointment clause in the school foundation's articles of incorporation, personnel regulations, or the appointment contract, or repeated renewal of the appointment contract, a private university faculty member appointed for a fixed term must be deemed to naturally lose the status of faculty member upon expiration of the appointment period (see Supreme Court Decision 2003Da52647 rendered on March 9, 2006, Supreme Court Decision 2003Jaeda262 rendered on March 9, 2006, and others). Even if broad academic freedom is allowed to private university faculty, it must not impair the rights and welfare of students, who are the recipients of education holding the fundamental right to receive education, and the right of students to receive education must be realized in accordance with the various education-related statutes enacted based on the constitutional provision declaring the principle of statutory regulation of the education system. It must also be noted that the principle of statutory regulation of teacher status, which is the foundation of the right to a fair review regarding faculty reappointment, is likewise grounded in the realization and guarantee of the right to receive education. At the same time, with respect to the protection of the legal interests concerning reappointment of private university faculty, consideration must also be given to the fact that excessively restricting the personnel authority of the school foundation, which is an interested party with opposing interests, regarding faculty reappointment, could conflict with the purport of the constitutional provision guaranteeing university autonomy (see Constitutional Court Decision 2005Hunma723 rendered on October 30, 2008, and others). In light of the purport of these constitutional provisions and education-related statutes, a private university faculty member must fundamentally possess the abilities and qualities relating to academic research, student education, student guidance, compliance with education-related statutes, and other matters of maintaining dignity as a faculty member, which are the virtues used as criteria for reviewing faculty qualifications under the relevant statutes and the school foundation's articles of incorporation; the same applies to reappointment (see Supreme Court Decision 2007Da9009 rendered on February 1, 2008, and others). Since the appointing authority needs to review whether to reappoint a faculty member upon expiration of the appointment period by taking into account these various circumstances, whether to reappoint a person whose appointment period has expired falls within the discretionary authority of the appointing authority's judgment (see Supreme Court Decision 96Da7069 rendered on June 27, 1997, Supreme Court Decision 97Da25477 rendered on December 23, 1997, and others).
However, according to the relevant provisions of the Amended Private School Act and the Special Relief Act discussed above, a private university faculty member appointed under the fixed-term appointment system whose appointment period has expired has the right to demand a fair review based on reasonable criteria regarding whether to be reappointed, with the expectation that, absent special circumstances, he or she will be reappointed if he or she meets the criteria upon fair review, based on reasonable criteria, of his or her abilities and qualities as a faculty member (see Supreme Court Decision 2003Da52647 rendered on March 9, 2006, Supreme Court Decision 2007Da9009 rendered on February 1, 2008, and others). Where the appointing authority denies reappointment to a faculty member who applied for reappointment, if there is no objective ground for denial of reappointment—that is, no ground that the faculty member fails to meet the reappointment review criteria—or if, even where such a ground exists, the appointing authority has abused or exceeded the discretion permissible in a reappointment review conducted to verify the faculty member's abilities and qualities and determine eligibility, such that it is recognized to lack a fair review based on reasonable criteria, and it is deemed reasonable in light of social norms to deny the private-law effect of the decision itself, the decision to deny reappointment may be deemed invalid. A decision to deny reappointment "exceeds or abuses discretion" where the decision violates the principle of public interest, or is unbalanced in light of the negative evaluation factors used as the basis for the denial such that it violates the principle of proportionality, or lacks fairness without reasonable grounds in departing from the criteria generally applied, such that it violates the principle of equality; this must be determined comprehensively based on various factors in accordance with the specific case, including the content and nature of the negative facts and the degree to which the reappointment review criteria are met, and the burden of proving grounds for invalidity of the decision to deny reappointment due to exceeding or abusing discretion lies with the party asserting such grounds (see Supreme Court Decision 2007Da9009 rendered on February 1, 2008).
Furthermore, with respect to the procedures for a decision to deny reappointment of a private university faculty member, where the Amended Private School Act applies or is retroactively applied, if the school foundation's failure to observe the pre-decision procedures set forth in Article 53-2, Paragraphs 4 through 7 of the Amended Private School Act reaches the extent that it can be evaluated as substantially infringing the right to demand a fair review based on reasonable criteria regarding reappointment as discussed above, the decision to deny reappointment may be denied effect based solely on such procedural defect. However, in cases where only the Special Relief Act applies to a decision to deny reappointment made before the Amended Private School Act took effect, since the Special Relief Act provides only for the review criteria and post-decision remedial procedures for reappointment re-examination and does not provide for pre-decision procedures related to reappointment as does the Amended Private School Act, the mere fact that the pre-decision procedures set forth in Article 53-2, Paragraphs 4 through 7 of the Amended Private School Act were not observed cannot, by itself, be deemed to render the decision invalid (see Supreme Court Decision 2007Da9009 rendered on February 1, 2008, Constitutional Court Decision 2005Hunma723, 2007Hunba109 rendered on October 30, 2008, and others). Rather, the effect of the decision is denied only where, in light of the overall progress of the reappointment process, it can be evaluated that the minimum procedural requirements in the reappointment review, such as prior notice of the grounds for denial of reappointment and assurance of an opportunity for the relevant faculty member to make representations thereon, were lacking (see Constitutional Court Decision 2000Hunba26 rendered on February 27, 2003).
According to the reasoning of the judgment below, the court below, after finding facts such as the articles of incorporation and faculty personnel management regulations of the university in this case, the reappointment review criteria and procedures of the university in this case, the reappointment review scores given to the Defendants, and the Defendants' research performance evaluations and work performance ratings as set forth in its ruling, determined, for the reasons stated in its ruling, that the respective decisions to deny reappointment made against Defendants 1, 2, and 4 exceeded or abused discretion and were invalid. Examining the reasoning of the judgment below in light of the legal principles discussed above and the record, the above determination of the court below is acceptable, and there is no error such as a misunderstanding of the legal principles regarding discretion in decisions to deny reappointment. The Plaintiff's argument on this point in its grounds of appeal cannot be accepted.
However, with respect to Defendant 3's argument that the decision to deny reappointment was invalid due to procedural defects, the court below rejected this argument on the ground that, since the Private School Act as amended on January 13, 1997, which applied at the time of the reappointment review in this case, and the Plaintiff's articles of incorporation and the faculty personnel management regulations of the university in this case, contained no provisions regarding pre-decision procedures for reappointment review, the mere fact that the Plaintiff failed to follow pre-decision procedures such as granting the said Defendant an opportunity to make representations at the time of the decision to deny reappointment in this case cannot be deemed to render the decision invalid due to a material procedural defect. However, as discussed above, since there remains room for the effect of a decision to deny reappointment to be denied if, in light of the overall progress of the reappointment process, it can be evaluated that the minimum procedural requirements in the reappointment review, such as prior notice of the grounds for denial of reappointment and assurance of an opportunity for the relevant faculty member to make representations thereon, were lacking, the court below should have determined the validity of the decision to deny reappointment in this case by examining, in accordance with the above standard of judgment, whether the Plaintiff in fact satisfied such minimum procedural requirements in the reappointment review at the time of the reappointment review in this case.
Nonetheless, the court below rejected the said Defendant's argument for the above reason alone, without examining whether the minimum procedural requirements in the reappointment review were satisfied. This determination by the court below contains an error of misunderstanding the legal principles concerning the reappointment procedures for university faculty prior to the enforcement of the Amended Private School Act, and of failing to conduct the necessary examination; therefore, without need to further examine the remaining grounds of appeal, the portion of the judgment below concerning Defendant 3's claim for confirmation of invalidity of the decision to deny reappointment cannot avoid reversal.
2. Determination on the grounds of appeal of the Plaintiff and Defendants 1, 2, and 4 regarding the claim for damages arising from the denial of reappointment
A. Requirements for establishment of the school foundation's liability for damages due to unlawful denial of reappointment, and the scope of such liability
Even where a school foundation's decision to deny reappointment of a fixed-term university faculty member is evaluated as exceeding or abusing discretion such that its private-law effect is denied, in order to hold the school foundation liable for pecuniary damages on the ground that this constitutes a tort, it must be recognized that the denial of reappointment in question was due to the school foundation's intent or negligence. For this purpose, it must reach the extent that the school foundation, judged against the standard of an ordinary university in general, lacked objective care such that the decision to deny reappointment can be recognized as having lost objective legitimacy; and whether objective legitimacy was lost must be determined based on whether there exists a substantial reason to impose liability for damages on the university, comprehensively considering various circumstances, including the content and nature of the grounds for denial of reappointment, the degree of the relevant faculty member's contribution to (involvement in) the occurrence of such grounds for denial, whether and to what extent the relevant faculty member made representations in the reappointment review procedure, the existence and content of any grounds substantially considered by the school foundation in its decision to deny reappointment beyond the stated grounds for denial, and the overall progress of the reappointment review.
Where a school foundation's tort is recognized following this determination, a private university faculty member who would have been reappointed had he or she undergone a lawful reappointment review may claim pecuniary damages equivalent to the wages for the period during which he or she could have been appointed as a faculty member and remained in service had such unlawful act not occurred (see Supreme Court Decision 2003Jaeda262 rendered on March 9, 2006, and others). The scope of such possible period of continued service must be determined individually by comprehensively considering circumstances such as the degree of overall strictness of the relevant university's reappointment review criteria and whether such criteria differ by academic field (humanities, social sciences, natural sciences, etc.), the relevant faculty member's field of specialization and the actual reappointment status (reappointment rate), the relevant university's structure of reappointment and promotion appointment (whether there is a limitation on the period of service at the same rank, and the degree of difference between reappointment review criteria and promotion review criteria), and the relevant faculty member's individual research capacity (the number of times previously reappointed or the level at which such reappointment was passed, and the degree of difference from the criteria for recognizing reappointment eligibility in the reappointment review in question); it is not necessarily limited to the amount equivalent to the wages that could have been received during the specific reappointment period for which the unlawful denial of reappointment occurred.
Meanwhile, in order for a private university faculty member to claim consolation money (위자료) on the ground of having suffered separate mental distress in addition to the above pecuniary damages due to unlawful denial of reappointment, it must be a case where it is clear that the university's abuse of discretion in the reappointment review cannot be tolerated under sound social norms or common social practice—such as where the school foundation, despite having absolutely no grounds to deny reappointment, intentionally denies reappointment under a different pretext solely with the intent to remove the faculty member from the university, or where a fact used as a ground for denying reappointment is objectively clear to not fall under the grounds for review of reappointment prescribed by the personnel regulations, etc., or to be unusable as a ground for denying reappointment, and this circumstance could easily have been recognized with even slight care, yet the denial of reappointment was nevertheless made on that basis (see Supreme Court Decision 95Da6823 rendered on April 23, 1996, Supreme Court Decision 2006Da30730 rendered on June 26, 2008, and others).
B. Regarding the school foundation's liability prior to the rendering of the 2003 Decision of Unconstitutionality-in-Conformity
However, as discussed above, the former Private School Act, prior to the Amended Private School Act, contained no provisions whatsoever regarding pre-decision procedures, grounds for denial of reappointment, or post-decision remedial procedures for the reappointment of private university faculty appointed under the fixed-term appointment system. Prior to the 2003 Decision of Unconstitutionality-in-Conformity or the Supreme Court en banc Decision 2000Du7735 rendered on April 22, 2004, the Supreme Court and the Constitutional Court understood that, absent special circumstances such as a mandatory reappointment clause in the articles of incorporation, personnel regulations, or appointment contract of the school foundation, etc., or a recognized "chain-linked employment relationship" arising from the fact that the appointment period was merely nominal and the appointment contract was continuously and repeatedly renewed, faculty members of national, public, and private universities appointed under the fixed-term appointment system had no expectation of reappointment, nor any right to demand a fair review based on reasonable criteria regarding reappointment, and thus treated the decision on reappointment as falling within the free discretion of the appointing authority, exempt from judicial review.
Given this settled judicial interpretation at the time, holding a school foundation liable for damages on the premise that it could have recognized, or could have avoided, the infringement of the rights or legal interests of a private university faculty member based on the right to demand a reappointment review—a right recognized only under the changed legal interpretation resulting from the amendment of the Private School Act and the enforcement of the Special Relief Act following the 2003 Decision of Unconstitutionality-in-Conformity—amounts to nothing other than demanding compliance with a norm that was generally interpreted at the time as not existing, or expecting the fulfillment of a duty of care that was, in reality, impossible to perform. Considering also that, due to the retroactive application of the Amended Private School Act and the enforcement of the Special Relief Act, an opportunity has come to be granted, absent special circumstances, for a new, proper reappointment review to be conducted even with respect to unlawful decisions to deny reappointment made prior to the enforcement of the Amended Private School Act, through remedial procedures such as a civil action for confirmation of invalidity, it follows that, prior to the rendering of the 2003 Decision of Unconstitutionality-in-Conformity (February 27, 2003), even if a decision denying reappointment exceeded or abused discretion in the reappointment review or was denied private-law effect on procedural grounds, the school foundation cannot, absent special circumstances, be held liable for damages on this basis.
In this connection, Supreme Court Decision 2003Jaeda262 rendered on March 9, 2006, held that, insofar as the Amended Private School Act retroactively applies, the illegality of the denial of reappointment—as an objective requirement for establishing tort liability for damages—should be re-examined in accordance with the new reappointment review criteria under the amended Act; and Supreme Court Decision 2003Da52647 rendered on March 9, 2006, likewise, in a case where the Amended Private School Act retroactively applied, reversed the judgment below on the ground of insufficient examination or failure to exercise the right of clarification, because the court below understood the claim for payment of money only as a claim for payment of wages premised on the continuation of faculty status, and failed to properly examine whether a claim for damages had been asserted. It should be noted that both of these Supreme Court decisions merely held that, in the relevant cases where the Amended Private School Act retroactively applies, the determination of the illegality of the decision to deny reappointment may differ from that under the former Act, and did not separately determine the subjective requirement for establishing tort liability.
C. Regarding the school foundation's liability after the rendering of the 2003 Decision of Unconstitutionality-in-Conformity
As discussed above, the Constitutional Court, in the 2003 Decision of Unconstitutionality-in-Conformity, held that the legislative gap in the former Private School Act regarding pre-decision procedures and post-decision remedial procedures for reappointment review violated the principle of statutory regulation of teacher status set forth in Article 31, Paragraph 6 of the Constitution, thereby determining that, even for fixed-term university faculty, objective criteria for grounds of denial of reappointment must be established, that there must be an opportunity to state one's position or receive prior notice of denial of reappointment before being denied reappointment, and further, that institutional mechanisms must be established to allow the faculty member to contest the denial of reappointment after the fact. This can ultimately be understood as a holding premised on the recognition, with respect to reappointment, of a university faculty member's right to demand a fair review based on reasonable criteria—that is, the right to request a reappointment review. Once the existence of such a right to request a reappointment review for fixed-term university faculty has been confirmed by the judiciary in this manner, from that point on, there is room for the school foundation to bear liability for damages if it fails, without special circumstances, to reopen the reappointment review procedure for a faculty member whose decision to deny reappointment continues to be denied effect on procedural or substantive grounds.
However, the reappointment procedure ordinarily proceeds in the order of application for reappointment, reappointment review, and decision on reappointment, and a decision to deny reappointment presupposes an intention to apply for reappointment. If a decision to deny reappointment has already been made in the reappointment review and retirement measures have been taken due to expiration of the appointment period, it accords with the general understanding of the parties to view the relevant reappointment procedure as having been concluded. Therefore, even if the decision to deny reappointment is denied effect on procedural or substantive grounds such that the school foundation's obligation to conduct a reappointment review continues to exist, in order to specifically hold the school foundation liable on the ground that the breach of such obligation constitutes a tort, the relevant faculty member's intention to apply for re-examination must first be confirmed.
Accordingly, even if it is recognized that the 2003 Decision of Unconstitutionality-in-Conformity confirmed the existence of a right to request a reappointment review for private university faculty appointed under the fixed-term appointment system, it would not be appropriate to immediately impose any legal disadvantage on the school foundation on the ground of its failure to perform the obligation of re-examination with respect to a past decision to deny reappointment, in a situation where the relevant faculty member has not expressed an intention to apply for re-examination. The school foundation's liability for damages due to unlawful denial of reappointment can be sought only from the point in time when the relevant faculty member's intention to apply for re-examination has been objectively confirmed. Meanwhile, such an intention to apply for re-examination by the relevant faculty member may be expressed through an act of directly urging or requesting the school foundation to conduct a reappointment review, but it may also be confirmed through an act such as the filing of a lawsuit against the school foundation seeking confirmation of invalidity of the decision to deny reappointment.
Furthermore, in order to hold the school foundation liable for pecuniary damages on the ground that, despite the confirmation of the relevant faculty member's intention to apply for reappointment as described above, the school foundation failed to reopen the reappointment review procedure, it is, of course, necessary that intent or negligence be recognized with respect to such conduct of the school foundation, as discussed above. Since the school foundation's failure to reopen the reappointment review procedure in this manner amounts to nothing other than maintaining the past decision to deny reappointment on the belief that it was justified, the school foundation's intent or negligence in this regard must be determined based on whether, judged against the standard of an ordinary university in general, the school foundation lacked objective care such that the decision to deny reappointment can be recognized as having lost objective legitimacy, comprehensively considering various circumstances including the content and nature of the past grounds for denial of reappointment, the degree of the relevant faculty member's contribution to (involvement in) the occurrence of such grounds for denial, whether and to what extent the relevant faculty member made representations in the reappointment review procedure, the existence and content of any grounds substantially considered by the school foundation in its decision to deny reappointment beyond the stated grounds for denial, and the overall progress of the reappointment review. Furthermore, in order to claim consolation money against the school foundation on the same grounds, the requirements discussed in Section 2.A above regarding the past denial of reappointment must likewise be satisfied.
D. Regarding the Plaintiff's liability for damages with respect to each Defendant in this case
According to the reasoning of the judgment below and the record, the Plaintiff made decisions to deny reappointment against Defendant 1 on August 31, 1997, against Defendant 2 on February 28, 1999, and against Defendant 4 on February 29, 2004, and has since refused to allow the said Defendants to return to their posts. Furthermore, it can be seen that, under the Plaintiff's faculty personnel management regulations, Defendant 1, born in 1953, Defendant 2, born in 1948, and Defendant 4, born in 1958, will each reach the mandatory retirement age (65 years) after 2018, 2013, and 2023, respectively. Meanwhile, in this case, the said Defendants each seek damages for pecuniary and mental harm for the period from the denial of reappointment until reappointment or reinstatement.
First, regarding the claims for damages of Defendants 1 and 2: since the said Defendants will not reach mandatory retirement age until 2018 or 2013, respectively, reinstatement remains possible even after the rendering of the 2003 Decision of Unconstitutionality-in-Conformity, until such retirement age is reached. Therefore, although, as discussed above, the Plaintiff cannot be held liable for damages prior to the rendering of the 2003 Decision of Unconstitutionality-in-Conformity, thereafter, if it is confirmed that the relevant faculty member has an intention to apply for re-examination, and the Plaintiff nonetheless fails to perform its obligation of re-examination, and intent or negligence is recognized with respect to such conduct of the Plaintiff, the Plaintiff's liability for damages may be recognized. Accordingly, the court below should have examined the point in time after the rendering of the 2003 Decision of Unconstitutionality-in-Conformity at which the said Defendants' intention to apply for re-examination was confirmed, and, if the Plaintiff still failed to perform its obligation of re-examination thereafter, should have determined the existence of the Plaintiff's liability for damages by examining whether there was intent or negligence in the Plaintiff's conduct in accordance with the standard of judgment discussed above.
Nonetheless, the court below, without examining the Plaintiff's intent or negligence with respect to the liability for damages in this case, premised that a tort is immediately established and the Plaintiff's liability for damages arises as soon as the decision to deny reappointment in this case is found unlawful, and then rejected all of the said Defendants' claims for damages on the ground that the short-term statute of limitations had run upon the lapse of three years from the time of the decision to deny reappointment, without examining at all the existence of the Plaintiff's liability for damages after the 2003 Decision of Unconstitutionality-in-Conformity.
Next, regarding the claim for damages of Defendant 4: since the said Defendant's case is one in which the decision to deny reappointment in this case was made after the rendering of the 2003 Decision of Unconstitutionality-in-Conformity, in this case, the relevant faculty member's intention to apply for reappointment review is confirmed to exist, and if the Plaintiff failed to properly perform its obligation to conduct a reappointment review and intent or negligence is recognized with respect to such conduct of the Plaintiff, the Plaintiff's liability for damages may be recognized. Accordingly, the court below should have determined the existence of the Plaintiff's liability for damages by examining whether there was intent or negligence in the Plaintiff's conduct in accordance with the standard of judgment discussed above.
Nonetheless, the court below, without examining the Plaintiff's intent or negligence with respect to the liability for damages in this case, concluded that a tort is immediately established and the Plaintiff's liability for damages arises as soon as the decision to deny reappointment in this case is found unlawful, and then upheld the said Defendant's claim for damages only for the three-year reappointment period stated in its ruling.
In conclusion, this portion of the judgment below contains an error of misunderstanding the legal principles concerning the requirements for establishing liability for damages due to denial of reappointment and the scope of establishment of such liability in light of the Decision of Unconstitutionality-in-Conformity in this case, and of failing to conduct the necessary examination. Therefore, without need to further examine the remaining grounds of appeal, the portions of the judgment below concerning Defendants 1 and 2's claims for damages regarding damages arising on or after February 27, 2003, the date of the rendering of the 2003 Decision of Unconstitutionality-in-Conformity, and concerning Defendant 4's claim for damages, cannot avoid reversal.
3. Conclusion
Therefore, among the portions of the judgment below that ruled against Defendants 1 and 2 on the principal claim and counterclaim, the portions concerning the claim for declaration of non-existence of the obligation for damages and the claim for damages regarding damages arising on or after February 27, 2003; among the portion that ruled against Defendant 3 on the counterclaim, the portion concerning the claim for confirmation of invalidity of the decision to deny reappointment; and among the portions concerning Defendant 4 on the principal claim and counterclaim, the portions concerning the claim for declaration of non-existence of the obligation for damages and the claim for damages, are all reversed and remanded to the court below for further examination and determination, and the remaining appeals by the Plaintiff and Defendants 1 and 2 are each dismissed. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Cha Han-seong (Presiding Justice), Justice Park Si-hwan (Justice in Charge), Justice An Dae-hee, Justice Shin Yeong-cheol