[행정처분취소][집19(3)행,018]
It is held that there is an error of law beyond the scope of free discretion by a resolution on whether to accept a doctor's degree at a graduate school committee.
According to Article 133 (1) of the former Enforcement Decree of the Education Act (amended by Presidential Decree No. 633, Apr. 23, 52) Article 133 (1) of the same Act, a doctoral degree should be granted to a person who has passed a doctoral degree thesis examination, oral examination, or two kinds of foreign language examinations, and it is illegal to make a decision to refuse to grant a doctoral degree beyond the scope of free discretion without pointed out
Article 133 of the Enforcement Decree of the former Education Act, Article 128 of the Enforcement Decree of the Education Act
Plaintiff
President of Defendant University
Seoul High Court Decision 70Gu197 delivered on April 6, 1971
The original judgment shall be reversed, and
The case is remanded to Seoul High Court.
The grounds of appeal by the plaintiff's attorney are examined.
The lower court determined that the Defendant’s disposition that dismissed the Plaintiff’s application for a degree based on the decision to reject the Plaintiff’s claim is not an unlawful act, since the Plaintiff passed the doctor’s degree thesis examination, oral examination, and class 2 foreign language examination, which is a reason to dismiss the Plaintiff’s claim, cannot be said to be an unlawful act that goes beyond the scope of discretion.
However, according to Article 133(1) of the Enforcement Decree of the Education Act which was in force at the time of the administrative disposition of this case, a doctor’s degree is stipulated to be awarded to a person who passed a doctor’s degree examination, oral examination, and secondary foreign language examination, submitted by a person under Article 127 or a person who has been recognized as having an equivalent academic background at a graduate school committee. Thus, if the plaintiff passed a doctor’s degree thesis examination, oral examination, and two kinds of foreign language examinations as in the original edition, unless there are other special circumstances, the defendant must give a doctor’s degree to the plaintiff pursuant to Article 133(1) of the Enforcement Decree of the Education Act. Even if a graduate school committee is a graduate school committee, it cannot be said that it is unlawful to determine whether to grant a doctor’s degree beyond the scope of free discretion, without considering the existence of
Therefore, the original judgment is reversed, and the case is remanded to the Western High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Supreme Court Judge Hong Nam-dae (Presiding Judge) (Presiding Justice)