Attorney Lee Im-soo, Counsel for the defendant

Attorney Yellow-hwan et al., Counsel for the plaintiff-appellant

Litigation costs shall be borne by the plaintiff.

The following facts are not disputed between the parties:

A. On June 13, 2018, the 7th election of the Gyeonggi-do Superintendent of the Office of Education (hereinafter “instant election”), Non-Indicted 1 candidate, Non-Indicted 2 candidate, Non-Indicted 1,026, 135 candidate, Non-Indicted 3 candidate, Non-Indicted 1,374,952 candidate, the Plaintiff 534,851 candidate, Non-Indicted 4 candidate, and Non-Indicted 2,385,410 candidate, who was first elected as the elected person.

B. On June 25, 2018, the Plaintiff filed a petition against the National Election Commission for an election with the National Election Commission. On August 20, 2018, the National Election Commission rendered a decision to dismiss the Plaintiff’s petition for an election. The Plaintiff served a written decision on dismissal of the Plaintiff’s petition for an election with the National Election Commission on August 24, 2018, and filed the instant lawsuit on September 3, 2018.

2. The plaintiff's assertion

The plaintiff asserts that the election of this case is null and void for the following reasons.

A. The instant election is in violation of the provisions relating to the election as follows.

1) Nonindicted 3 submitted a forged certificate of employment with a document proving the educational career while registering a preliminary candidate or registering a candidate. Nonindicted 3, who was employed as an associate professor at a university of 000 (from March 31, 2015 to April 2, 2018) concurrently held office as a full-time head of △△△△△△△△, a full-time employee (from March 31, 2015 to September 15, 2017), cannot be recognized as an educational career prescribed in Article 24(2) of the Education Autonomy Act, and thus, Nonindicted 3 did not meet the qualification as a candidate for the Superintendent of the Office of Education. In addition, Nonindicted 3 carried out an election campaign publicly announcing such false career.

2) Nevertheless, the Defendant violated Articles 49(8), 60-2(3), and 272-2 of the Public Official Election Act, which are applied mutatis mutandis pursuant to Article 49(1) of the Local Education Autonomy Act (hereinafter “Education Autonomy Act”), and violated Article 52(1)1 of the Public Official Election Act due to Non-Indicted 3’s failure to take measures for invalidation of registration against Non-Indicted 3.

3) The freedom and fairness of the election was hindered due to Nonindicted 3’s illegal act during the election process, such as fabrication of Nonindicted 3’s certificate of employment.

B. If the candidate registration of Nonindicted 3 was invalidated, the number of votes obtained by Nonindicted 3 and the number of votes obtained by Nonindicted 2 who made Nonindicted 3 was larger than that of Nonindicted 4, the elected, and Nonindicted 4 could not be elected. In a realistic sense, Nonindicted 3 and the Plaintiff were the candidates who advocate the remuneration, and there is a high possibility that the voters of the remuneration tendency have renounced the election because the candidates who claimed the remuneration were not a single candidate. Accordingly, the fact that the above election violated the provisions as to the above election has influenced the result of the instant election.

3. Determination

A. Relevant legal principles

Article 224 of the Public Official Election Act shall apply mutatis mutandis to a lawsuit seeking invalidation of an election for Superintendent of the Office of Education pursuant to Article 49 (1) of the Education Autonomy Act, and Article 224 of the Public Official Election Act shall apply mutatis mutandis to a lawsuit seeking invalidation of an election for Superintendent of the Office of Education only when it is recognized that there has influenced the result of the election even if there is a violation of the provisions concerning the election. "The fact that the provisions concerning the election, which are the grounds for invalidation of an election, are in violation of the provisions concerning the management of election affairs" shall include cases where the election commission, which is the subject of election management, violates the provisions concerning the management of election affairs and where it is deemed that the freedom and fairness of the election, which is the basic ideology of the election, is significantly impeded because the elector cannot vote freely by decision due to an illegal act committed by a third party, such as a candidate."

(b)whether there is a violation of the provisions regarding the election.

1) The competent constituency election commission regulations on the application for the registration of a preliminary candidate and the invalidation of registration under the Education Autonomy Act and the Public Official Election Act shall accept the application without any evidentiary documents on the education career under Article 24(2) of the Education Autonomy Act: Provided, That where evidentiary documents on the candidate’s eligibility for election as prescribed by the National Election Commission Regulations are not attached, the application shall be accepted once, and the relevant constituency election commission shall investigate the matters (Articles 49(1), 49(3)1 and 49(3)4 of the Education Autonomy Act, Articles 49(8) and 60-2(3) of the Public Official Election Act, which newly submitted the certificate of career experience of the candidate to the ○○○○ University from 200 days to 300 days to 200 days from the date on which the candidate was newly submitted (Article 49(1) of the Education Autonomy Act, Article 52(1)12 of the Public Official Election Act). In full view of the facts that the candidate submitted the certificate of career experience of the 20000 to the Gyeonggi-do National Election Commission.

3) A person who intends to become a candidate for the Superintendent of an Office of Education as to whether Nonindicted 3 failed to meet the education experience prescribed in Article 24(2)1 of the Education Autonomy Act shall have at least three years’ educational experience or educational administration experience as at the filing date of application for registration of the application for registration of the university. Of these, education experience means the career of serving as a teacher in a kindergarten under Article 2 subparag. 2 of the Early Childhood Education Act, an educational institution or a lifelong educational establishment under Article 2 of the Elementary and Secondary Education Act, and Article 2 of the Higher Education Act (including an educational institution or a lifelong educational establishment recognized as equivalent thereto, which is established pursuant to other Acts) (Article 24(2)1 of the Education Autonomy Act). Faculty members of a university are classified as professors, associate professors, assistant professors, and instructors (Article 14(2) of the Higher Education Act); Article 11-3 of the Educational Officials Act; Article 11-4 of the Private School Act or Article 53-2 of the Private School Act; Article 5 of the Higher Education Act can only be deliberated and research, etc.

Meanwhile, requiring a person who intends to be the Superintendent of an Office of Education to have an educational experience or educational administrative experience as a certain period of time is to satisfy the qualification requirements required by the Early Childhood Education Act, the Elementary and Secondary Education Act, the Higher Education Act, and the Public Educational Officials Act, so that an educational expert who can be objectively recognized as having knowledge of education in a scientific or substantive manner can be the Superintendent of an Office of Education in charge of general administration (see, e.g., Constitutional Court Order 2007HunMa17, Sept. 24, 2009).

In light of the legislative intent of Article 24(2) of the Education Autonomy Act, which requires the educational autonomy Act, the provisions and structure of the Higher Education Act, the educational experience of the candidate for the superintendent of education, or the educational administration experience, the term “career of serving as a teacher at a school under Article 2 of the Higher Education Act” under Article 2 of the Higher Education Act shall be deemed to be the career of serving as a professor, associate professor, assistant professor, or instructor under Article 14(2) of the Higher Education Act. Therefore, if a teacher is appointed as a teacher under Article 14(2) of the Higher Education Act and is engaged in his/her duties, he/she

Comprehensively taking account of the overall purport of the arguments on the fact-finding results with respect to the university Gap evidence No. 1 and 000, Non-Indicted 3 was appointed on March 31, 2015 from ○○○ University, a school under Article 2 of the Higher Education Act, as an associate professor, who is a teacher. According to the above school teachers personnel management regulations, where the president specifically recognizes it, Non-Indicted 3 can be employed as a full-time employee, and Non-Indicted 3 may be recognized as having been employed as an associate professor at the above university for at least three years until April 2, 2018, and the fact that Non-Indicted 3 has been engaged in duties as a teacher by taking lectures and research. Accordingly, Non-Indicted 3 is deemed to have worked as a teacher under Article 24(2)1 of the Education Autonomy Act, and it does not change even if the period of other duties or the period of the actual lecture falls short of the teaching hours determined by the inside of the university.

4) Conclusion

Therefore, under the premise that the certificate of employment submitted by Nonindicted 3 was forged or that the educational career as a candidate for the superintendent of education is not recognized, the Plaintiff’s assertion that Nonindicted 3 committed an illegal act in the election process is not acceptable. Whether the Defendant’s execution of the Defendant’s election affairs did not neglect the duty to investigate under Articles 49(8), 60-2(3), and 272-2 of the Public Official Election Act, which are applicable mutatis mutandis under Article 49(1) of the Education Autonomy Act, and did not take measures to invalidate the registration as a violation of Article 52(1)1 of the Public Official Election Act, or Nonindicted 3 did not receive all the Plaintiff’s assertion that the

As alleged by the Plaintiff, there is no evidence to prove that, if the Defendant discovered the disqualifications for Nonindicted 3’s eligibility before the election day and withdrawn the measure to invalidate his registration, all electors supporting Nonindicted 3 have cast their votes to Nonindicted 2, who were the third-class holders of the voting, or if the candidate registration of Nonindicted 3 becomes invalid, there is no evidence to support that the voters of Nonindicted 3’ tendency actively participated in the voting and the Plaintiff was elected to the highest number of votes and Nonindicted 4 was unable to be elected.

4. Conclusion

Therefore, the plaintiff's claim is dismissed without merit, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.