[2] Whether an amendment to school regulations is subject to disposition in a case where the previous place of work of a professor of a national university has been changed to another place at all (affirmative)

[3] The case holding that the amendment of the school regulations to change the name or part of the department or major of the National University, or to establish and abolish part of the department and major of the college is unlawful, but its revocation is clearly inappropriate for public welfare, on the ground that such amendment does not go through the prior notice procedure stipulated in the relevant statutes and school regulations

[2] Since important matters pertaining to the status, which may be directly affected by the school regulations, are related to the type, content, and place of work provided by a professor of a national university, even if a professor continues to work of the same kind and content as his/her former professor while maintaining his/her school regulations, the amendment of the school regulations should be deemed specific disposition when the former workplace is entirely changed to another place due to the amendment of the school regulations.

[3] The case holding that the amendment of the school regulations to change the name or part of the department or major of the National University, or to establish and abolish part of the department and major of the college is unlawful, but it is recognized that the cancellation is not considerably appropriate for the public welfare, and thus, it is not appropriate to revoke it.

2. The plaintiff 1 and 2's claims are dismissed, respectively.

3. Of the fixed number of admission by recruitment unit in attached Table 1-208 of the attached Table 2 of the Regulations on the Regulations of the National University of Korea amended by the Defendant on October 16, 2007, the part on the admission quota by recruitment unit is unlawful.

4. Of the costs of lawsuit, the part arising between the Plaintiff 1 and the Defendant is assessed against the Defendant, and the part arising between the Plaintiff 3 and the Defendant is assessed against the Plaintiff 3, respectively.

A. Plaintiffs 1 and 2 are professors of a natural science university food product school at the National Institute of Civil Aviation (hereinafter “Public Service”), Plaintiff 3 are associate professors of a department of medical records of the Nursing and Health University, and the Defendant is the president of the National Institute of Civil Service.

B. The campus in the official campus in the official campus is divided into the new official campus in the Si/Gu and the Yaan campus in the Si/Gu of Chungcheongnam-gu, the District Court of Education, the cultural and social sciences university, the natural science university in the new campus, the nursing and the art university in the new campus, the industrial science university in the budget campus, and the astronomical campus in the official campus.

C. Around December 2006, the Defendant prepared a “basic plan for the comprehensive management examination of the Samsung Economic Research Institute” in order to take the Gongju as a five-grade master university in the Republic of Korea, and actively respond to the direction of the government’s educational policy. From March 12, 2007 to July 31, 2007, the period of Samsung Economic Research Institute requested research services for the establishment of the comprehensive examination of university management and innovation promotion plan. Based on the diagnosis conducted by the Samsung Economic Research Institute, the Defendant held a public hearing on May 8, 2007 and June 5, 2007 on the comprehensive examination of university management conducted by the universities, and prepared a draft for the reorganization of school management structure of the universities on June 29, 2007; and prepared a public health research product restructuring plan of the Ministry of Health and Medical Research under the control of the Ministry of Health and Medical Research with the Ministry of Health and Welfare’s industrial information restructuring of the Ministry of Health and Welfare’s industrial research product.

D. On July 19, 2007, the Defendant requested a deliberation by the faculty council of the faculty council on the draft of the school affairs structure. However, on October 5, 2007, the above draft of the school affairs structure is not clear, and it cannot be deliberated on the ground that it did not properly gather opinions from the university members. Furthermore, after deliberation by the planning committee on July 23, 2007 and deliberation by the academic affairs council on July 26, 2007, the Defendant submitted a draft of the plan for the adjustment of the fixed number of admission to the university to the Ministry of Education on July 27, 2007, and the above draft was amended twice on September 29, 2007, and thereafter, on October 5, 2007, the Ministry of Education notified the Defendant of the result of the adjustment of the fixed number of admission from the 2008 academic year to the 2008 academic affairs of the public university, and the Defendant received the revised plan from the 10th of 2007.107.

E. Meanwhile, the Defendant, while revising the school regulations for the above reorganization of school affairs on October 8, 2007, requested deliberation on the partial amendment of the school regulations that reflects the result of adjustment of the fixed number of students at the faculty council without following the prior notice procedure necessary for the amendment. The professor Council opened the deliberation council on October 9, 2007 and notified the Defendant that the amendment of the school regulations (the draft) is invalid because 85% of the participants oppose the result of the pros and cons voting. However, on October 10, 2007, the Defendant, after deliberation by the legislative council on the above amendment (the draft), promulgated the school regulations on October 16, 2007 after deliberation by the council of legislative affairs on October 10, 2007, and reported the amendment of the school regulations to the Ministry of Education on October 18, 2007. < Amended by Presidential Decree No. 20350, Oct. 18, 2007>

F. The main contents of the school regulations amended on October 16, 2007 are to reflect the fixed number of admission by recruitment unit in 2008 based on the result of the adjustment of the fixed number of students, to change the names of some departments and majors, to move affiliated colleges, and to establish and abolish part of the departments and majors at each recruitment unit. Accordingly, the fixed number of admission by recruitment unit in 2008 among the fixed number of admission by recruitment unit in attached Table 2 of the school regulations (attached Table 2) was amended as shown in attached Table 2 in relation to the department of medical records (the school regulations amended on October 16, 2007) as shown in attached Table 1 of the Do in attached Table 2 in relation to the department of medical records (the school regulations amended on October 16, 2007 referred to as the "school regulations of this case", and the attached Tables 1 and 2 referred to as the "part 1 and 2 of the amendment of the school regulations of this case".

G. Prior to the amendment of the school regulations, the food product department of Plaintiffs 1 and 2 belonged to the food product department of a natural science university (including the food product department of a category and the food product department of a category 40) but after the amendment of the school regulations, the food product department remains in the food science university with a total of 20 persons, but the food product department of a natural science still remains in the food science university. After the amendment of the school regulations, the food product department became affiliated to the food science department of the next year. The food science department of the above food science includes the food product department of an existing food nutrition department in addition to the food product department newly incorporated. In addition, the medical records department of the health science department of a total of 38 persons prior to the amendment of the school regulations, with a total of 70 persons from the health science department of a total number of those majors and the health administration department of a new 38 persons prior to the amendment. After the amendment of the school regulations, the university was integrated with the health administration department of a department affiliated with the department of public health science without changes.

H. Accordingly, on November 12, 2007 and December 31, 2007, Plaintiffs 1 and 2 filed an appeal review seeking revocation of the amendment of school regulations with each teachers’ appeals review committee. However, on January 7, 2008, the teachers’ appeals review committee dismissed each of the above claims on the ground that it does not constitute “disposition” as stipulated in Article 9(1) of the Special Act on the Improvement of Teachers’ Status.

I. Pursuant to the school regulations of the instant amendment, the Ministry of Government Administration and Home Affairs completed the second recruitment and regular recruitment from time to time in 2008.

[Evidence] Facts without dispute, Gap 1, 5, 11, 14, 26, 39, 535 through 69, 77, Eul 1 through 34 (including various numbers), the purport of the whole pleadings

2. Relevant statutes and school regulations;

It is as shown in the attached Form.

3. Whether the instant lawsuit is lawful - The amendment of the school regulations of the instant case

A. The parties' assertion

(1) The plaintiffs' assertion

According to the school regulations of the instant amendment, Plaintiffs 1 and 2 are bound to be transferred from the new campus to the budget campus. Plaintiff 3 was at a disadvantage that is not guaranteed the status and expertise as a public educational official due to the abolition of the affiliated department. As such, each of the school regulations of the instant amendment should be deemed an administrative disposition against the Plaintiffs.

(2) The defendant's assertion

Although the Ministry of Health and Welfare changed the department of food service to an industrial science university pursuant to the amendment of the school regulations of this case, it does not directly transfer Plaintiff 1 and 2 to the budget campus as a result of the school regulations itself, and even if the above plaintiffs are transferred to the budget campus later, it does not affect the status of professor and salary merely because it merely moves to a simple workplace. Furthermore, even if the department of medical records is changed to the health care major in combination with the health care major of the health department, it merely changes the name. Thus, each of the relevant parts of the school regulations of this case cannot be viewed as an administrative disposition. Accordingly, the plaintiffs' lawsuit of this case is unlawful.

(b) Markets:

(1) The public authority is a national university established and operated by the State as a public institution under the public law, and thus can be the subject of the exercise of public authority. If the school regulations of the public authority do not directly change the specific rights and duties of members, but merely define general and abstract principles on the operation of schools and regulations on plans or members, it cannot be deemed an administrative disposition. However, if the school regulations of the public authority merely stipulate the general and abstract principles on the operation of schools and regulations on the members, without involvement in a separate enforcement act based on the school regulations, it is an administrative disposition that causes legal effects, such as impact on the specific rights of members or legal interests

(2) In the case of professors of national universities, the important matters pertaining to their status, which may be directly affected by school regulations, are the parts pertaining to their types, details, and place of work (class and research). Therefore, even if they continue to work of the same kind and content while maintaining their previous faculty positions, the amendment of school regulations ought to be deemed to have concrete disposition when the previous workplace is changed to a different location due to the amendment of school regulations.

(3) Plaintiff 1 and 2

Part 1 of the amendment of the school regulations of this case separates the food nutrition department, which was included in the food nutrition department, from the food nutrition department, and the food engineering department included in the food nutrition department of the industrial science university, and combines it with the food nutrition department of the food engineering department of the industrial science university, and divides it into food nutrition department, food engineering department, and food product science department by major. Accordingly, the new food product department is subdivided into the food nutrition department, food engineering department, and food product major. In this case, the new food product department changes into the budget campus of the industrial science university, and in fact, the campus of the budget campus in which the industrial science university is located is changed into the industrial science university, and the recruitment unit was changed to the budget campus in which the industrial science university is located when recruiting the second new students.

Therefore, the above plaintiffs, professors belonging to the Ministry of Food and Drug, did not take any other measure under the amended school regulations of this case, and have a direct duty to work in the budget campus located in the Industrial Science University. This is an important change in the above plaintiffs' work place, which directly affects their specific rights and duties. Thus, the above amended school regulations constitute administrative disposition against the above plaintiffs.

(4) Plaintiff 3

In the amendment of the school regulations of this case, the two parts of the amendment maintain the same full number of affiliated colleges without changes to the full number of affiliated colleges: Provided, That since the department of medical records is integrated into health and administrative majors in the Ministry of Health and Welfare and 1:1, and only changes to the name of the major of health care, it cannot be said that there are any changes or impacts on the specific status rights of the members under its control.

Accordingly, Plaintiff 3 asserts that there is a risk of ex officio dismissal as the department of medical records is closed in accordance with the amendment of the school regulations of this case. However, this part of the reorganization of the school structure is not limited to the closure of the department of medical records information, but it is limited to the alteration of the name by combining the same division with other departments within the university and college, and the situation that the above Plaintiff had a vague fear for ex officio dismissal is merely an individual nature, and it does not constitute an objectively affected specific rights and obligations. Accordingly, the part of the school regulations of this case is not an administrative disposition against the above Plaintiff, and the lawsuit by the above Plaintiff is unlawful.

4. Whether a part of the amended school regulations of this case is legitimate

A. Summary of the plaintiff 1 and 2's assertion

(1) procedural illegality

One of the amendments to the school regulations of this case shall be revoked as it is erroneous in the following procedures:

(1) The pre-announcement procedure has not been completed for 20 days.

② Although the faculty council decided to oppose the amendment of school regulations, it neglected the resolution.

(3) There was no deliberation by the academic affairs council.

4. The Defendant did not make efforts to ignore the process and to hold consultations, even though it could request re-adjudications if it is not an opinion among the faculty council members.

(2) Violation of law in content

① The Defendant unilaterally tightly boomed a school restructuring proposal, which is different from other departments or colleges, without giving an opportunity to make a self-resolution plan, is a failure to report on the ground that most of the professors and students under his/her control are women, and thus, is in violation of the principle of equality.

② Although the Ministry of Food and Drug Products has the most specialized nature and competitiveness in the Ministry of Food and Drug Products, it is necessary to conduct research with other departments belonging to nature and abuse, and even if a large-scale food service company is geographically favorable to the public sector, moving the same to an industrial science university located in the budget to integrate with the food nutrition department which is merely 35% of the similarity of subjects, there is no reasonable ground for moving the same to the industrial science university located in the budget, and it is in violation of the Defendant’s academic restructuring principle, which constitutes deviation and abuse of discretionary power.

(b) Markets:

(1) Determination on the assertion of procedural illegality

(A) Preliminary notice procedure

1) According to Article 6(3) of the Higher Education Act, Article 4(2) of the Enforcement Decree of the same Act, and Article 122(3) of the school regulations of the official housing zone, when the defendant intends to amend the school regulations, the defendant shall hear the opinion of its members by giving 20 days' prior notice, unless it is required to amend the school regulations or simply for enforcing matters prescribed by superior laws and regulations. However, the defendant did not implement the above prior notice procedure on the ground that there is an urgent reason while amending the school regulations of this case. The defendant was notified by the Minister of Education and Human Resources Development of the result of the adjustment of the fixed number of students on October 7, 2007, and accordingly, he received an occasional two semesters from October 9, 2007 to October 12, 2007. Therefore, it is necessary to promptly reflect the result of the above adjustment of the school regulations.

2) However, the minimum period of 20 days required for the pre-announcement procedure is not a particularly difficult requirement. To amend the school regulations, it is not necessary for the pre-announcement procedure, not for the amendment of the school regulations, but for other procedures such as deliberation by the faculty council and the school council. Under the current circumstances, even if the pre-announcement procedure is omitted, it is not likely that the Defendant’s amendment procedure of school regulations can be completed from October 9 to October 12, 2007 where the application for the recruitment of secondary new students was scheduled at any time even if the pre-announcement procedure was omitted, until October 16, 2007. In fact, it is difficult to view that the amendment procedure of school regulations was completed only on October 16, 2007, and even if the amendment of the school regulations was delayed, it does not hinder the establishment of the pre-announcement procedure of new students at the time of the amendment of the school regulations.

3) The Defendant asserts that the purport of the pre-announcement procedure is to gather the opinions of the members of the school, and that the amendment of the school regulations is not unlawful even if the school regulations were to be amended without undergoing a separate pre-announcement procedure, since the purport of the pre-announcement procedure is to gather consensus from the members of the school, and the opinions of the members of the school are already gathered in various ways regarding the proposed school structure reflecting the content of the amended school regulations. However, while the amendment of the school regulations merely remains in the status of the plan and proposal, the amendment of the school regulations is a conclusive change that significantly affects the basic structure of the school and the status of the members of the school, and the two are fundamental differences in nature. Thus, even if the school regulations have already undergone a sufficient procedure for collecting opinions

4) The pre-announcement procedure required for amendment of school regulations is an important system that leads members to participate in the process and guarantees democratic legitimacy, and it does not require an administrative agency to decide whether to pass through the procedure. Therefore, the amendment of school regulations of this case without just cause is unlawful.

(b) Inviting the opposing resolution of the faculty council;

Article 122(1) of the School Regulations of the Organization of the Organization of the Organization provides that the school regulations shall be amended following deliberation by the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Republic of Korea. While the Defendant was subject to deliberation by the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization of the Organization

(C) Failure to deliberate by the academic council

It is insufficient to recognize that there was no deliberation on the amendment of the school regulations related to the food product department and the medical information department in the course of deliberation by the academic affairs council only with some of 17 evidence 3.

(D) Failure to review procedures;

Article 19 of the Regulations on the Faculty of Professors of the Korean National University provides that, if the defendant objects to the matters to be deliberated by the faculty and deliberation council, he/she may request a retrial within 10 days from the date of receipt of the notification, accompanied by a written objection, and that, if the defendant and the deliberation council fail to agree, he/she shall endeavor to reach an agreement in respect of mutual opinions. However, there is no effective provision or separate means in preparation for the violation, and it is merely a voluntary provision. Accordingly, even if the defendant did not request a retrial in relation to the amendment of the regulations, it is not unlawful.

(2) Determination of the illegality of the content

(1) Violation of equality principles

According to the above evidence, the school restructuring proposal prepared by the defendant was made by reflecting the results of the comprehensive management diagnosis conducted by the external research institute in accordance with the long-term vision to put the Gongju into a prestigious university. Accordingly, the basic direction of promoting specialized research, integrating similar departments, and enhancing competitiveness was set for the restructuring of 11 departments, including not only the food and nutrition department, medical records department, but also the food and nutrition department, food engineering department, and other food and product department, and among them, the above three departments were already established within the industrial research university, which can enhance the academic system operation, education, and research efficiency. In addition, it was determined that the operation of the above three departments within the industrial research university can be improved in consideration of the anticipated transfer of the Do government office to the neighboring branch of the budget camp, and further, the fact of changing the industrial research product department under the control of the external industrial research university.

According to the above facts, even if the amendment of the school regulations of this case exclusively moves out of the food product department, it is difficult to view it as a discrimination against professors and female students of the food product department, and rather, there are reasonable and substantial grounds to accept the process and result. Thus, the amendment of the school regulations of this case does not infringe the above plaintiffs' right to equality.

(2) Deserting or abusing discretionary acts.

The reorganization of a school organization shall be carried out by the method of the amendment of school regulations authorized to the President of the National Education Administration, and there is a policy decision that should be comprehensively considered to achieve the future school development and educational purpose. Therefore, in order to recognize the amendment of school regulations as illegal, the amendment of such school regulations should be seen as essentially infringing on a specific individual's fundamental right by deviating from the scope and limit of discretion. In determining this, the court should look at the matter belonging to the defendant's professional and political decision-making area as far as possible, unless it violates the basic purpose of the law.

In full view of all the circumstances indicated in the instant case, it is insufficient to recognize that the Defendant’s policy decision to change the department of food service to the industrial science university alone is inherently infringing the above Plaintiffs’ fundamental rights by abusing discretion or discretion.

(3) Sub-decisions

All of the above plaintiffs' arguments except the part concerning the pre-announcement procedure are without merit.

5. Judgment of assessment;

A. In a case where there is an error in administrative procedure, the procedure becomes an independent ground for the administrative disposition in question, and in principle, the administrative disposition in question must be revoked if it is unlawful. However, in an exceptional case where the cancellation of an illegal disposition is considerably inappropriate for public welfare as an exception, the circumstances where the cancellation is not permitted may be determined. Whether it is considerably inappropriate for public welfare, which is the requirement, should be determined by comparing and comparing the necessity to cancel the illegal administrative disposition in question and the situation against public welfare which may arise due to such cancellation.

B. We examine whether there is a justifiable reason for public interest to specially maintain the instant disposition, notwithstanding the reason for illegality without undergoing the prior notice in the instant case.

As established based on the evidence and facts mentioned above, the Ministry of Government Administration and Home Affairs is expected to cause serious confusions in the operation of school affairs in the country, if the amended school regulations of this case were cancelled, on the basis of the school regulations of this case, from time to time in 2008, through the second and regular recruitment of new students. While the amendment of the school regulations of this case requires pre-announcement to ensure democratic participation of its members, the meaning and importance of the procedures are not so minor that it can be arbitrarily omitted or disregarded, it is not so long as there are other essential procedures such as various deliberations to indicate its members' participation and opinion, and therefore, it may be extremely omitted from the amendment of the school regulations of this case without reducing the period of time. On the other hand, the amendment of the school regulations of this case was made to the extent that it is not appropriate for the Plaintiffs to participate in the amendment of the school regulations of this case, while the amendment of the school regulations of this case was made to the extent that the amendment of the school regulations of this case was made public.

C. For this reason, we decide to render a judgment on the above plaintiffs' claims.

6. Conclusion

The plaintiff 3's lawsuit is unlawful and dismissed, and the claims of the plaintiff 1 and 2 shall be dismissed, respectively, but it shall be decided as per the disposition by specifying the illegality in the order.

Judges Hwang Sung-ju (Presiding Judge)