Attorney Lee Jae-hoon, Counsel for the plaintiff-appellant

Law Firm C, Attorney Park Jae-hoon

2. The costs of appeal shall be borne by the Plaintiff.

A. On October 2008, the Plaintiff entered the Korea Maritime University (hereinafter referred to as the “Defendant University”) in the Ministry of Transport and Maritime Affairs on March 2, 2009, by applying the qualification of ‘the children of the commercial employees working overseas' (hereinafter referred to as ‘the special screening of this case’) as ‘the children of the commercial employees working overseas'. The Plaintiff entered the Ministry of Transport and Maritime Affairs of the above university on March 2, 2009 through the examination of documents, interview and oral examination.

B. In relation to the special screening of this case, D, the father of the Plaintiff, served as the commercial revenue source of domestic corporations in China from the second half of 2007 to November 1, 1998 to June 27, 2008, the Plaintiff forged the certificate of employment as if he worked as the commercial revenue source from the Cheongdo Corporation Co., Ltd., a Chinese Investment Limited Corporation in the Scian Metal Co., Ltd., the principal food company, and submitted it to the Defendant’s university to interfere with the Defendant’s special screening business by fraudulent means, and the judgment became final and conclusive around that time.

C. On July 16, 2012, the Defendant notified the Seoul Central District Prosecutor’s Office that “the Plaintiff submitted to the Seoul Central Prosecutor’s Office for the special screening in this case and discovered suspicions of illegal admission.” On October 23, 2012, the Defendant issued a disposition of cancellation of admission (hereinafter “instant disposition”) against the Plaintiff pursuant to Article 41(2) of the Regulations of the Defendant’s University.

(d)The school regulations of the Defendant’s University related to the instant case and the special screening courses in this case are the following:

/School regulations of the Defendant University

Article 40 (Admission to Outside of Fixed Number)

Article 29 of the Enforcement Decree of the Higher Education Act shall apply to Korean nationals residing abroad, foreigners, students in agricultural and fishing villages, North Korean defectors, etc.

Admission to an area other than the prescribed number pursuant to paragraphs (2) and Article 30 (4), and the qualifications and qualifications for application may be granted.

Detailed matters necessary for screening, etc. shall be separately determined by the president.

Article 41 (Admission Permission)

(1) The president shall grant admission, and a person who is permitted to enter a school shall pay the prescribed amount of contribution by the designated date.

necessary entrance procedures, such as submission of required documents, shall be implemented.

(2) The following persons shall revoke the admission permit:

1. A person who passes an examination by improper means;

2. When the procedure for admission referred to in the preceding paragraph is not implemented without any justifiable reason;

Article 42 (Suretys for Educational Courses)

(1) The surety shall be responsible for the matters related to the personal affairs of parents of students or the student concerned.

such person shall be deemed to have any capacity.

(2) When the address of a guarantor is changed, he/she shall report to the school immediately.

4. Outline of the special screening in this case

3.Qualification requirements and common academic background requirements.

· Children of commercial employees serving abroad: Children of commercial employees who have served in a foreign country for at least two years and have returned to Korea;

A person who has attended a foreign school for at least two years (including a high school curriculum for at least one year) and returned to Korea;

· Employees of local subsidiaries and children of self-employed persons: Parents and children of a foreign country for at least two years;

Any person who has completed at least two years at a foreign school (including a high school curriculum for at least one year);

Children of Korean nationals residing abroad who graduate or scheduled to graduate;

7. Matters to be considered as the applicant;

(a) The applicant shall submit within the time limit for receipt of the documents, prepared with the documents specified in this Section;

and to apply for an interview or oral examination only to a person who is recognized as an eligible person as a result of the examination of support eligibility documents;

Qualification shall be granted.

(e) Passing an examination by improper means, etc. shall be revoked, and even during his/her school attendance, illegal means;

If the fact of admission is found by a method, etc., the admission shall be revoked.

[Ground of recognition] Each entry of Gap evidence Nos. 1, 2, Eul evidence Nos. 1 through 4, 8 through 10 (including each number; hereinafter the same shall apply), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

1) Articles 21 through 24 of the Administrative Procedures Act provide that in cases where an administrative agency takes an infringed administrative disposition, prior notice shall be given by specifying in advance the parties concerned the title, content, legal basis, and opinion submission of the disposition, and the opportunity to present their opinions shall be given, and the grounds and reasons therefor shall be presented by means of documents at the time of the disposition.

The defendant did not go through the above procedure while taking the disposition of this case, which is the cancellation of admission.

2) The Plaintiff is qualified as a “child of a commercial employee” at the time of support to the Defendant University.

In addition, even if the plaintiff failed to meet the above qualifications, he/she is qualified as a "employee of the local subsidiary or self-employed child", and there is no difference in the method of selection or evaluation by classifying both parties at the special screening for overseas Koreans, he/she may pass the qualification of "employee of the local subsidiary or children of the self-employed child" as the plaintiff who has achieved excellent results in the interview and oral examination. Accordingly, the submission of the above certificate of employment does not affect the success of the plaintiff.

In addition, the plaintiff's father D's certificate of employment of commercial financial resources is forged D, and the plaintiff did not know the fact at all.

Therefore, the plaintiff is not a person who was admitted by illegal means.

3) Furthermore, taking account of the circumstances in the above 2-mentioned and the background leading up to the submission of the certificate of employment of commercial revenue sources to D in the instant case, the Plaintiff already completed the curriculum of the Defendant’s university, and most of the students who committed unlawful acts in the admission screening for agricultural and fishing villages were not subject to the revocation of admission, the instant disposition violates the principle of proportionality.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination as to whether the Administrative Procedures Act is violated

A) Whether the Administrative Procedures Act applies to the instant disposition

The defendant asserts that the disposition of this case is merely a case where the plaintiff's admission permission is notified and confirmed that it is void a year from the beginning, or that it constitutes a case where the Administrative Procedures Act is excluded pursuant to Article 3 (2) 9 of the Administrative Procedures Act and Article 2 (8) of the Enforcement Decree of the same Act.

However, there are no relevant laws and regulations regarding the detailed selection criteria and methods by the head of a university or college to select new students through a Korean national residing abroad and a foreign special screening. Accordingly, even if the head of a university or college failed to obtain the qualification of "child of a commercial employee" as determined by the recruitment outline of the special screening at the original level, and submits a false certificate of employment in the course of application, such circumstance alone is so serious and obvious that the admission license can not be deemed to be void as a matter of course.

Furthermore, Article 3(2)9 of the Administrative Procedures Act provides that the Administrative Procedures Act shall not apply to matters that are deemed difficult or unnecessary to complete administrative procedures due to the nature of the relevant administrative action and matters prescribed by Presidential Decree as matters related to the administrative procedures, which are related to the matters prescribed by Presidential Decree. Article 2(8) of the Enforcement Decree of the Administrative Procedures Act provides that "matters prescribed by Presidential Decree" refers to matters for students, students, etc. in order to achieve the purpose of education and training in schools, training institutes, etc.

In light of the interpretation of the above provisions, it cannot be immediately deemed that the Administrative Procedures Act is not applied because the pertinent disposition constitutes "matters for students to achieve educational purposes" in schools under Article 2 (8) of the Enforcement Decree of the Administrative Procedures Act, and it should be subject to "matters which are deemed difficult or unnecessary to undergo administrative procedures due to their nature or matters which have undergone procedures equivalent to administrative procedures" under Article 3 (2) 9 of the Administrative Procedures Act.

In the instant case, it is difficult to view the disposition of revoking admission to the Plaintiff as a matter that is difficult to complete administrative procedures or deemed unnecessary to go through due to its nature, and there is no evidence to deem that the disposition of this case has already undergone the procedure equivalent to the administrative procedure. Therefore, it is reasonable to deem that the disposition of this case is a disposition subject to the Administrative

B) Whether the instant disposition violates the Administrative Procedures Act

(1) If the evidence mentioned in paragraph (1) above and each of the statements stated in Nos. 5 through 7 included in the evidence mentioned in Paragraph (1) above reveal the purport of the entire pleadings, the following facts can be acknowledged.

① On August 1, 2012 and August 23, 2012, the Defendant notified the Plaintiff’s father D, who is the Plaintiff’s father, of the fact that the Plaintiff submitted false documents to the instant special screening at the Seoul Central District Public Prosecutor’s Office and notified the Plaintiff of the fact that the Plaintiff was suspected of being unlawfully admitted; that the Plaintiff requested parents or students to submit a written vindication to confirm whether the special screening at issue was illegal admission; that written vindication should be submitted within the time limit by stating the fact of the contents of the certificate of employment; that written vindication should be submitted by stating the details of the written explanation; and that it is scheduled to handle the Plaintiff’s cancellation of admission, based on the regulations

② On August 27, 2012, D submitted a written vindication to the effect that “I would like to make a false certificate of employment as if I had worked as the source of commercial income, even though I would like to make a false certificate of employment as I would like to make it inevitable for time or for convenience of procedure, even though I would like to make it inevitable, even though I would like to make it a false certificate of employment as I would like to have worked as a source of commercial income in the Chinese Investment Corporation, a Chinese Investment Corporation, a Chinese Commercial Machinery Limited

③ After that, on October 15, 2012, the Defendant decided to revoke the Plaintiff’s admission license after deliberation and resolution by the University Admission Screening Management Committee and the school affairs conference on October 16, 2012, and notified D on October 23, 2012 in writing that the Plaintiff’s admission license was revoked pursuant to Article 41(2) of the school regulations of the Defendant’s University and all administrative matters were invalid after the date the admission license was revoked.

(2) According to the above facts, the Defendant did not give prior notice, stating the title and legal basis of the disposition in advance, but notified the Plaintiff of the fact that the Plaintiff was suspected of being illegally admitted by submitting false documents on August 1, 2012 and August 23, 2012, and notified the Plaintiff of the fact that the Plaintiff would be subject to the revocation of the admission in accordance with the relevant provisions, such as school rules, if the Plaintiff’s illegal admission is confirmed.

Accordingly, the plaintiff or D could be sufficiently aware of what grounds and reasons the cancellation of admission is achieved, and the defendant clearly notified that he can submit his opinion by requesting the submission of a statement of vindication to his parents or students at the time.

And D submitted a written vindication as to the circumstances during which the false certificate of employment was submitted. On October 23, 2012, the Defendant notified the Defendant in writing that the original admission permit was revoked based on Article 41(2) of the school regulations of the Defendant University. At the time of the instant disposition, the opportunity to present opinions was given, and the reason for the disposition was also presented in the form of a document.

On the other hand, the above prior notice and the provision of opportunity to present opinions, and the notification of the disposition of this case are not the plaintiff, but the plaintiff, who is the deceased.

However, the purpose of advance notice and hearing procedure system is to provide the deceased party who will be disadvantaged due to the disposition with an opportunity to submit materials favorable to defend himself/herself in advance and to ensure appropriateness of the disposition and to prevent unjust infringement of rights (see, e.g., Supreme Court Decision 91-971, Jul. 9, 191). The reason presentation system is to exclude arbitrary decisions of the administrative agency and to enable the parties to properly cope with the administrative remedy procedure (see Supreme Court Decision 2007Du20362, Dec. 10, 2009).

However, as seen earlier, since the fraudulent act of submitting a false certificate of employment was conducted by D, D would be more faithful than the Plaintiff’s assertion that the process is explained by D. Moreover, Article 42 of the school regulations of the Defendant University provides parents as a guarantor of the educational course. In addition, in light of the aspects such as determination of the legality of the disposition of this case and the adoption of remedies related thereto, it cannot be said that the prior notice of the disposition and the notice of the disposition of this case is disadvantageous to the Plaintiff.

In full view of these circumstances, it is reasonable to view that the defendant implemented the procedure, such as prior notification of dispositions, grant of opportunity to present opinions, and presentation of reasons for the disposition by document erosion as stipulated in Articles 21 through 23 of the Administrative Procedure Act in rendering the instant disposition.

2) Determination as to the existence of the reasons for the disposition

A) As acknowledged in paragraph (1) above, Article 42 (2) 1 of the school regulations of the defendant university provides that "a person who passed an admission examination in an unlawful manner shall revoke the admission approval," and that "a person who passed the special screening examination of the defendant university in this case by improper means shall revoke the admission approval if he/she passes an examination in the special screening examination of the defendant university in this case by improper means, and even if he/she attends an examination by improper means, the admission approval shall be revoked."

However, in light of the provisions of the above school regulations and the purport of the recruitment outline in order to achieve fairness and objectivity at the time of admission into a university, it is reasonable to view that the applicant who is closely related with the applicant has committed an unlawful act on behalf of the applicant as an illegal act is also a wrongful person (see Supreme Court Decision 2006Da23817, Jul. 13, 2006).

B) Based on these legal principles, the Plaintiff applied for the qualification of the “child of a commercial employee in the instant special screening” in the instant case, and the fact that, in the case of the above qualification, the guardian works in a foreign country as a commercial financial resource of a domestic corporation, etc. for at least two years and is subject to the condition that he/she should return to Korea. As seen earlier.

However, according to Gap evidence Nos. 3 and Eul evidence Nos. 3, since the plaintiff's father D from August 2007 to his/her Chinese investment company's Chinese investment company's Chinese investment company's Chinese company's Chinese company's Chinese company's Chinese company's Chinese company's Chinese company's Chinese company's Chinese company's Chinese company's Chinese company's Chinese company's Chinese company's Chinese company's Chinese company's Chinese company's Chinese company's Chinese company's Chinese company's Chinese company's company's Chinese company's Chinese company's foreign company's company's company'

Nevertheless, as seen earlier, the Plaintiff submitted a certificate of employment in the name of D forged in the special screening of this case, and accordingly, the Defendant University judged that the Plaintiff satisfied the qualification of ‘foreign employee’s children.

According to the above facts, the plaintiff is deemed to be a person who passed the examination by improper means, and even if the plaintiff was not aware of such fact at all, the above improper act constitutes grounds for cancellation of admission according to the school regulations of the defendant university and the recruitment outline of the special screening in this case.

C) On this point, the Plaintiff asserted that the special screening of this case could have passed the qualification of “employee of the local corporation and children of the self-employed”, and thus, the submission of forged employment certificate did not affect the Plaintiff’s success.

However, the plaintiff could not pass the university of the defendant, even if he had the qualification for the support of the "employee of the local corporation" and the "child of the self-employed" as alleged by the plaintiff, as long as he did not support the special screening in this case and submit necessary documentary evidence.

However, even if it is not so, it is a reason to revoke the passing of an examination if it constitutes a fraudulent act even though it does not affect the passing of the examination (see Supreme Court Decision 2006Da23817, Jul. 13, 2006). Thus, it cannot be viewed differently solely on the ground that the Plaintiff could have passed the qualification of “child of the employee of the local subsidiary” as an employee of the local subsidiary.

D) Therefore, the Plaintiff’s assertion on this part is without merit.

3) Determination as to whether the principle of proportionality has been violated

In the selection examination of applicants for entrance, successful decision, qualifications for admission, methods of selection, etc. are discretionary actions that the relevant educational institution may freely determine in consideration of the character, qualities, academic background, knowledge, etc. necessary to achieve the educational purpose within the scope of the relevant statutes, etc., and if such action is remarkably deviates from or abused the discretionary authority, it is illegal.

However, the autonomy of the university as an educational institution should be respected for the decision on the cancellation of pass or entrance according to the standards for inappropriate disposal set by the university itself to the extent that it does not infringe the right of applicants to receive education.

In addition, in light of the social reality in which most of the juveniles in Korea are invested in time and effort and at the time of university entry, fairness in university entry is more strict than in any examination.

Furthermore, the special screening provided by the Plaintiff is highly likely to be denied because it is not easy to investigate the authenticity of certificates issued in foreign countries, and such improper act may seriously threaten equity in university admission examinations and fair operation of university admission systems. Therefore, the public interest needs to be revoked.

In light of the above autonomy of educational institutions and the need for public interest such as the fairness of university admission systems, the instant disposition that revoked the Plaintiff’s admission cannot be deemed to violate the principle of proportionality even if considering the circumstances leading up to such unlawful act or the Plaintiff’s assertion that the Plaintiff was not aware of such unlawful act or was qualified as an employee of a local subsidiary.

On the other hand, the plaintiff argues that most of the misconducts in admission screening for special cases in agricultural and fishing villages did not comply with the principle of equity in this case because most of the misconducts in admission cancellation disposition is not taken place. However, according to the evidence No. 5, in the case of admission screening for special cases in agricultural and fishing villages, the fact that a disposition for cancellation of admission is taken only against minority students because it is difficult to prove misconducts. Therefore, the above circumstance should not

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just, and the plaintiff's appeal shall be dismissed as it is without merit. It is so decided as per Disposition.

Oral Dus

Kimok-Dhan

former Higher Education Act (Amended by Act No. 11690, Mar. 23, 2013)

Article 34 (Selection Method of Students)

(1) The head of any university or college (including any industrial college, teachers' college, junior college, junior college, and cyber college, but excluding any graduate school university or college) shall select students to be admitted by taking the regular selection process or special selection process from among those who have qualifications referred to in Article 33 (1).

(2) Matters necessary for the methods of general screening or special screening under paragraph (1) and the selection schedule and operation thereof shall be prescribed by Presidential Decree.

(1) Enforcement Decree of the former Higher Education Act (amended by Presidential Decree No. 24423, Mar. 23, 2013)

Article 29 (Admission and Transfer)

(2) Notwithstanding Article 28 (1), in cases of admission of any of the following persons, the fixed number of personnel shall be deemed to be determined separately. In such cases, the total number of students of persons falling under subparagraphs 2, 3, 8, 9, or 11 through 14 shall be determined by the standards in attached Table 1:

2. Korean nationals abroad and foreigners (excluding Korean nationals abroad and foreigners referred to in subparagraphs 6 and 7);

Article 31 (Selection of Students)

(1) In selecting new students pursuant to Article 34 (1) of the Act, the heads of universities or colleges (including industrial colleges, teachers' colleges and junior colleges, but excluding graduate school universities or colleges and cyber colleges; hereafter the same shall apply in Article 34) shall ensure that they guarantee the right of all national citizens to receive equal education according to their abilities and that elementary and secondary education is operated in conformity with the original purposes of education. In such cases, the heads of national universities or colleges shall also devise a plan to promote balanced national development.

(2) In admission screening referred to in Article 34 (1) of the Act, the heads of universities or colleges shall prepare and implement various methods and standards to ensure that talent, aptitude and abilities of students may be reflected.

Article 34 (Classification of Admission Screening)

(1) A general screening referred to in Article 34 of the Act shall be a screening which selects general students according to general educational standards, and shall be implemented in public by fair competition according to the standards and methods for admission screening serving the educational purposes of universities or colleges concerned.

(2) A special screening referred to in Article 34 of the Act shall be a screening which selects students who need screening based on the standards such as special career or talent presented by universities or colleges or discriminatory educational compensation standards, and shall be implemented in public by bringing them into fair competition according to the standards and methods for reasonable admission screening meeting the socially accepted value standards.

Administrative Procedures Act

Article 3 (Scope of Application)

(2) This Act shall not apply to any of the following matters:

9. Matters deemed unnecessary to complete an administrative procedure due to the nature of the relevant administrative action, such as conscription and call-up under the Military Service Act, entry and departure of foreigners, recognition of refugee status, naturalization, disciplinary action and other dispositions under the Acts and subordinate statutes related to public officials' personnel affairs, and mediation, conciliation, arbitration, arbitration, and other dispositions under the Acts and subordinate statutes aimed at mediating interests, and matters prescribed by Presidential Decree, which have undergone procedures equivalent to administrative procedures, and which have undergone procedures equivalent to administrative procedures, in accordance with the nature of the relevant administrative action;

Article 21 (Advance Notification of Dispositions)

(1) Where an administrative agency takes a disposition to impose duties on the parties or to restrict their rights and interests, it shall notify the parties concerned of the following matters in advance:

1. Title of the disposition;

2. Names or titles and domiciles of the parties;

3. The grounds for the disposition and the details of the disposition and legal basis;

4. The purport that the opinions may be submitted with respect to subparagraph 3 above and the processing method when no opinions are presented;

6. Time limit for submitting opinions.

7. Other necessary matters.

(3) The deadline under paragraph (1) 6 shall be set in consideration of a reasonable period necessary to present opinions.

(4) The notification under paragraph (1) need not be given in any of the following cases:

1. Where an urgent disposition is necessary for the safety and welfare of the general public;

2. Where a certain disposition should be taken because any qualification required by Acts and subordinate statutes, etc. is not available or disappeared;

the court's judgment, etc. objectively verified by the court that the person is not or ceases to be

OF

3. Considering that hearing opinions is considerably difficult or clearly unnecessary due to the nature of the relevant disposition.

(2) if there is a reason for

Article 22 (Hearing of Opinions)

(1) When rendering dispositions, administrative agencies shall hold a hearing in any of the following cases:

1. Where a hearing is required by other Acts and subordinate statutes, etc.;

2. When deemed necessary by administrative agencies.

(2) In rendering dispositions, an administrative agency shall hold a public hearing in any of the following cases:

(3) Except as provided for in paragraph (1) or (2), when an administrative agency imposes obligations on the parties or imposes restrictions on their rights and interests, it shall provide the parties concerned with an opportunity to present their opinions.

Article 23 (Presentation of Reasons for Dispositions)

(1) In rendering dispositions, administrative agencies shall present the basis and reasons for such dispositions to the parties, except in cases falling under any of the following subparagraphs:

1. Where a disposition fully accepts the details of the application;

2. In case of a simple and repetitive disposition or an insignificant disposition where the parties concerned are able to clearly understand the reasons;

(2) In cases of paragraph (1) 2 and 3, administrative agencies shall, after rendering dispositions, explain the basis and reasons for such dispositions to the parties at their request.

Article 24 (Method of Disposition)

(1) When rendering dispositions, administrative agencies shall do so in writing, except as otherwise expressly provided for in other Acts and subordinate statutes, and in cases of electronic documents, the consent of parties, etc. shall be required: Provided, That where it is necessary to process them promptly or a matter is insignificant, it may do so orally or by other means. In such cases, upon the request of the party concerned, the documents concerning the disposition

(2) A document of disposition shall include the position, name, and contact information (referring to a telephone number, facsimile number, e-mail address, etc.) of the relevant administrative agency and the person in charge of the disposition.

Enforcement Decree of the Administrative Procedures Act

Article 2 (Exclusion from Application)

"Matters prescribed by Presidential Decree" in Article 3 (2) 9 of the Act means matters falling under any of the following subparagraphs:

8. Matters to be conducted for students, trainees, etc. in order to achieve the objectives of education and training at schools, training institutes, etc.