기간임용제 사립대학 교원에 대한 재임용거부결정의 시기별 사법심사 기준 법령과 위법한 재임용거부로 인한 손해배상책임의 법리

This paper is about standard statues that were applied at a time when decisions on refusal of renewal of fixed term faculty members of private universities were delivered and deals with the legal principle of the Supreme Court decision 2007Da42433 decided on July 29, 2010 about compensation and liability caused by unlawful dismissal of renewal of appointments. In 2003, the constitutional discordance adjudication was rendered twice on the Article 53-2, Paragraph 3 of the former Private School Act(Amended in 1990 and in 1997), which regulated re-appointments of the fixed term faculty members of universities. The decision led to amending relevant clauses and putting in force the Private School Act in 2005, in addition, the Special Act on the Remedy for University Faculty Members was enacted to review re-appointment of those who lost professorship by the expiration of appointment term before the special act was took effect. With changes in the relevant act, the supreme court had review cases that were dismissed on the ground that they were not met requirements for judicial review at the Court. For faculty members of National and Public Universities, in en banc decision 2000Du7735 rendered on April 22, 2004, the Supreme Court changed its opinion even though it previously acknowledged refusal of re-appointments by universities. As far as the faculty members of private universities concerned, the Court sated in decision (case number:2007Da9009, delivered on February 1, 2008) that refusal of re-appointments of faculty members might be reviewed by the court and it acknowledged that they have the right to request reviewing re-appointment by applying the amended Private School Act (the Supreme Court Decision 2003Jaeda262 delivered on March 9, 2006) retroactively to those which were affected by the constitutional discordance adjudication decided in 2003. It also added that they have legitimate interest in a civil claim seeking nullification of refusal of renewal of appointment by applying the Special Act on the Remedy for University Faculty Members to the other cases. The Supreme Court Decision 2000Du7735, above mentioned, is of significance as the Court stated legal principle on the standard of judgement regarding deviation․abuse of discretion in a civil claim seeking invalidity of denial of reviewing re-appointments. The subject decision confirms the judicial principle, at the same time it provides procedural safeguards for the legal status of faculty members who are employed by universities for a specific term, ruling that procedural defects might be sufficient by itself, in some extent, to void validity of the decision to refuse re-appointments. Concerning procedural defects, it, however, clearly stated that for those cases which are retroactively affected by the Private School act, substantial violation of a teacher's right to request reviewing re-appointment shall be assumed. Meanwhile other cases where the Special Remedy Act is applied to (cases that subject to the constitutional discordance adjudication as well as those that refusal of re-appointment was affirmed after the historical adjudication mentioned above) shall prove that there was even single procedural defect in reviewing re-appointments as such advance notification, explaining the reasons for not extending employment and guaranteeing the chance for the employee in question to represent him/herself. It could be said that the Court has tried to strike balance between the universities and their employees for a specific term and protect legal interest of universities. The subject decision establishes, for the first time, a legal principle of compensation and liability caused by unlawful refusal of reexamining re-appointments based on the act which was amended after the constitutional discordance adjudication in 2003. It also clearly stated that deviation and/or abuse of discretion in reviewing re-appointments shall not constitute an unlawful act with respect to refusal of re-appointment, unless there are specific terms likes compulsory re-appointment, continuous renewal of fixed term employment, and so on in the articles of association, personnel regulations of the university, or employment contracts. In addition, separate review on liability of the university (with intent or by negligence) shall be followed. For theses issues, the lower court generally has concluded that if the decision not to re-appoint a subject faculty member is considered null and void, it shall be regarded as unlawful act. Nonetheless, the subject decision said that only if fulfilling of duty of care leads to the extent of invalidating legitimacy of the decision not to re-appoint, that shall constitute unlawful act. Opinion of subject decision seems reasonable as it stated clearly that unlawfulness of refusing renewal of faculty members shall be judged based on the conditions that constitute unlawful act for faculty members of National and Public universities. For the scope of property damages, the subject decision said that before making a decision on whether refusal of re-appointment is unlawful or not, courts should consider specific circumstances of the educational foundation and the faculty member in question. Based on its opinion, it could be said that the subject decision reflects the main purpose of fixed-term appointment system as well as actual state of implementing the system. The subject decision concluded that without specific reasons intention or negligence by universities occurred in the process of re-appointment was not accepted considering previous rulings that firmly denied litigants the right to request to review re-appointment in terms of liability for damages caused by refusal of re-appointment during the previous Private School Act was took effect, put it simple before the constitutional discordance adjudication was rendered in 2003. However, the subject decision stated that when the faculty member in question had intention to ask the school to review re-appoint and his/her intention was confirmed since the constitutional discordance adjudication, the school might have responsibility for the damages. The subject decision has a great meaning as it clearly stated for the first time that the court shall prudently scale subject factors like intention or negligence regarding requirements of liability before the constitutional discordance adjudication, in legal relationship of person.