[불합격처분취소][공1999.10.1.(91),1977]
The legislative purport of the Decree of the Judicial Examination that grants the qualification to apply for the second examination to the successful applicants of the judicial examination, and the second examination that the successful applicants of the first examination can only apply to the successful applicants of the second examination after revocation of the decision of the successful applicants of the second examination (=the second examination being conducted for the first time after receipt of the decision of successful applicants and the second examination thereafter)
Articles 5(1), 6(1), 8(1), and 9(1) of the Decree on the Judicial Examination provide that persons who have passed the first examination shall be eligible to take the second examination and then the second examination. The purpose of Article 5(1), 6(1), 8(1), and 9(1) of the Decree on the Judicial Examination is to recognize that those who have passed the second examination has knowledge and ability to take the second examination, and that those who have passed the second examination is eligible to take the second examination and to take the second examination over two times. However, if the second examination is implemented after the first examination passed, the second examination is implemented and it is not possible to take the second examination and to take the second examination after the second examination completed the second examination, it is interpreted that those who have passed the second examination are not eligible to take the second examination to take the second examination corresponding to the first examination.
Articles 5(1), 6(1), 8(1), and 9(1) of the Decree on Judicial Examination; Article 12 of the Administrative Litigation Act
[Plaintiff-Appellant] Plaintiff 1 and 11 others (Law Firm Gyeong, Attorneys Lee Jae-soo et al., Counsel for plaintiff-appellant)
Plaintiff
The Minister of Government Administration and Home Affairs (Attorney Go Young-deok, Counsel for defendant-appellant)
Seoul High Court Decision 99Nu1115 delivered on April 22, 1999
The appeal is dismissed. The costs of appeal are assessed against the defendant.
According to Articles 5(1), 6(1), 8(1), and 9(1) of the Enforcement Decree of the Judicial Examination Decree, the agency conducting the judicial examination shall announce the implementation plan at the beginning of each year at least once a year. Each meeting shall be divided into the first, second, and third examinations, and the final successful applicant shall be determined, the second examination shall not be conducted without passing the first examination, and the third examination shall not be conducted without passing the second examination, but for the person who has passed the first examination, the first examination shall be exempted only from the first examination. However, in this context, it is reasonable to interpret that the first examination after the meeting to which the first examination passed under the law belongs (the first examination if the first examination passed the 40th judicial examination, the first examination has passed the first examination). Therefore, in case of ordinary meetings, a person who has passed the first examination and the second examination shall only be eligible to apply for the second examination.
However, each of the above provisions can only be interpreted as a general provision where it is possible for a successful applicant to take the second examination prior to the execution of the second examination of the meeting and the second examination of the next meeting. However, even though a successful applicant is subject to the second examination due to the error in the setting of the first examination or the grading process, a successful applicant is subject to a decision to pass the examination as a matter of course due to the cancellation of the decision to pass the examination, the decision to pass the examination can not be seen as a provision that is expected to be physically impossible to take the examination due to the completion of the second examination of the meeting or the second examination of the next meeting. In such a case, it cannot be interpreted as a provision that the second examination which the successful applicant is able to take the examination, even if the first examination was determined to pass the first examination by applying the above provisions formally, is restricted by the decision to pass the second examination which is given to the first applicant by illegal decision of the agency conducting the judicial examination, and thus it is not possible to allow the first examination to pass the right of equality, public duties and rights under the Constitution.
Therefore, there is no express provision applicable to the above special circumstance, so the legislative purpose of the relevant provision should be combinedly applied. The legislative purpose of the above provisions is to recognize that a successful applicant in the first examination is having knowledge and ability to request the second examination, and that a successful applicant in the second examination is entitled to take the second examination over two times. However, the second examination is to be conducted in the close vicinity of the first examination after the successful applicant has passed the second examination, and it is not the purpose of allowing a successful applicant in the second examination to take only the second examination in response to the individual nature of each examination. Thus, if a successful applicant in the second examination is not eligible to take the second examination in response to the first examination after receiving an illegal decision after being rejected in the first examination and revoked the decision, but it is not possible to take the second examination after passing the second examination or decision to pass the second examination, and if it is impossible to pass the second examination after passing the second examination or decision to pass the second examination, it is interpreted that the second examination or decision to pass the second examination after passing the second examination.
Therefore, in this case, as long as the plaintiff was subject to the first examination of the 40th judicial examination and was subject to the decision of rejection, and the lawsuit of this case was lawfully filed, even if the second examination of the 40th judicial examination and the 41th judicial examination has been completed in the previous lawsuit or the 41th judicial examination during the lawsuit, if the plaintiff was to receive the decision of success in the lawsuit of this case after winning the lawsuit of this case, the plaintiff is entitled to take the second examination being conducted for the first time and to take the second examination thereafter, and thus, the plaintiff has the interest in maintaining the lawsuit of this case. The other grounds of appeal are rejected.
2. The court below accepted the judgment of the court of first instance, and held that the defendant's disposition of this case which rejected the plaintiff on the ground that the plaintiff's score exceeds the passing standard point because the plaintiff's score exceeds the passing standard point when adding the points to the plaintiff's score, among the first 40-time judicial examination (type 1 in question) of the plaintiff's 40-time judicial examination (type 1 in question), the plaintiff's answer to the fifth issue of the Constitution can also be a correct answer, and thus, the defendant's disposition of this case is unlawful. The decision of the court below is correct, and there is no error in the rules of evidence or in the misapprehension of legal principles
3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.
Justices Shin Sung-sung (Presiding Justice)