[2] In a lawsuit seeking the revocation of an administrative disposition, whether the disposition agency can assert as a ground for disposition on the ground that it is a separate fact that is not identical to the basic facts of the ground for the first disposition (negative)

[3] Whether a ruling of assessment should be applied under strict requirements (affirmative), and the method of determining whether “it is substantially inappropriate for public welfare” which is a requirement for rendering a ruling of assessment

1. Details of the instant case

According to the reasoning of the lower judgment and the evidence duly admitted, the following circumstances are revealed.

(a) Price determination of textbooks;

1) Since the 1950s, the prices of textbooks and other curriculum books have been under circumstances with the Defendant’s Minister of Education (the name of the Minister of Education, Science and Technology, the Minister of Education and Human Resources Development, the Minister of Education, Science and Technology, etc. has changed due to the restructuring

2) However, as there is an opinion that enhances the diversity and quality of textbooks by respecting the creativity and autonomy of publishing companies, the former Regulations on Textbooks (amended by Presidential Decree No. 21687, Aug. 18, 2009; Presidential Decree No. 25185, Feb. 18, 2014; Presidential Decree No. 25185, Feb. 18, 2014) introduced “the textbook pricing system.” Accordingly, the prices of government-designated books shall be determined through bidding, and the government-designated books shall be separately determined by the Minister of Education (Article 32), while the Defendant shall separately determine the detailed matters concerning cost calculation, the price of the stamp of approval shall be determined by the author and the agreed publishing company, and if the price might be determined unfairly by the Defendant’s education committee, the Council may recommend the adjustment of prices through the deliberative council (Article 33).

B. The plaintiffs' application for approval and delivery of the plaintiffs' textbooks

1) Around December 2012, the Plaintiffs filed an application for the inspection of each of the instant curriculum books, and the Korea Institute of Education delegated the examination of examination by the Defendant’s Minister of Education conducted a basic survey of the content, indication, and expressions of each of the instant curriculum books, and subsequently decided to pass the first pass on May 10, 2013.

2) On June 2013, the Plaintiffs: (a) prepared and submitted to the Korea Institute of Curriculum Evaluation and Planning the estimated price calculation statement containing the desired price of each of the instant curriculum books; (b) the Korea Institute of Curriculum Evaluation and Planning reviewed the suitability of each of the instant curriculum books as curriculum books; and (c) decided the final passing of the approval seal date on August 30, 2013; and (d) publicly announced it in the Official Gazette.

3) From September 2013, the Plaintiffs displayed each of the instant textbooks to each of the schools from around September 2013, received the adoption and orders from each of the schools, and then printed and produced the curriculum books, and supplied them to each of the schools.

C. Introduction of the price adjustment order system and the order for price adjustment by the Defendants

1) On August 16, 2013, in order to ensure the effectiveness of the textbook price adjustment recommendation system, Defendant Minister of Education pre-announceed a legislative proposal on partial amendments to the regulations on curriculum books, the main contents of which are to impose the duty of receiving the authorization for price adjustment on publishing companies. After then, the amendment of Article 33(2) of the former Regulations on Textbooks (amended by Presidential Decree No. 25185, Feb. 18, 2014) was made on February 18, 2014; where the price of authorized books and approved books is likely to be unfairly determined due to the reasons prescribed by each subparagraph, the Minister of Education introduced an order for price adjustment, which the Minister of Education may order the price adjustment

2) On March 1, 2014, the Defendant Minister of Education held the Deliberation Council on Textbooks (hereinafter “The First Deliberation Council”) and discussed “the grounds and criteria for calculating the recommended amount, unit price application, and recommendation price proposal by publishing company.” The Deliberative Council, including the Plaintiffs, participated in the meetings of the Chairperson of the Korea Textbook, which is an incorporated association, and the representative director of the Plaintiff, the company, the company, and the future UN representative director, who is a member of the publishing company as a member of the Deliberative Council. The second and third Deliberative Council held thereafter continued to participate therein. The Defendant Minister of Education recommended the first price adjustment recommendation on March 6, 2014, but the Plaintiffs did not comply with the recommendation.

3) On March 10, 2014, the Defendant Minister of Education invited publication companies’ related parties, including the Plaintiffs, to explain the criteria for calculation of the adjustment recommendation price and the applicable method of the standard number of copies, etc., and sought the opinions of the publishing companies’ related parties. On March 14, 2014, the Defendant Minister explained the method of determining the standard number of copies by inviting the representatives of publishing companies, including the Plaintiffs, to explain the method of determining the standard number of copies by which the actual number of copies issued is to be raised from 10% to 18% when calculating the standard number of copies.

4) On March 18, 2014, the Defendant Minister of Education: (a) held the second Council on March 18, 2014, discussed the proposed order for price adjustment of authorized books; and (b) resolved on the said agenda; (c) provided data similar to those provided at the first Council; (d) Defendant Minister recommended publishing companies, including the Plaintiffs on March 19, 2014 and March 21, 2014, but some publishing companies did not comply with the recommendation.

5) On March 25, 2014, the Defendant Minister of Education held the 3rd Council to examine evidentiary materials submitted by publishing companies, and decided on the proposal for the price adjustment order. The data provided at the 3rd Council include the expected number of copies published, actual number of copies published, standard number of copies published, manufacturing cost, cost, total amount of production cost, recommendation price, desired price, and reduction rate, and the detailed calculation standards and unit price of materials, such as material cost, printing and manufacturing cost, were stated.

6) On March 27, 2014, the Minister of Education issued each of the instant dispositions to order the Plaintiffs to adjust the prices of each of the instant curriculum books between April 21, 2014 and April 30, 2014.

2. As to the grounds of appeal by the Defendants related to the violation of the duty to present reasons and the grounds of appeal by the Defendant’s Minister of Education concerning the requirements

A. Summary of the relevant statutes

1) Article 29(2) of the Elementary and Secondary Education Act provides that “The scope, writing, authorization, approval, publication, supply, selection, price-assessment, etc. of curriculum books shall be prescribed by Presidential Decree.”

2) According to delegation, Article 33(1) of the Regulations on Textbooks (hereinafter “Rules on Textbooks”) provides that “The prices of authorized books and approved books shall be determined by the publishing company which agreed with the author.”

3) Article 33(2) of the Curriculum Rules provides, “Notwithstanding paragraph (1), the Minister of Education may order the adjustment of the price of authorized books and approved books (hereinafter “instant provision”) following the deliberation committee (Article 33(2) of the Curriculum Rules, where the prices of authorized books and approved books are likely to be determined unreasonably due to the following reasons, or where the publishers do not reflect the costs invested in the development of books (hereinafter “fixed costs”) in the prices even after the price was fully recovered by the publishers (hereinafter “fixed costs”) after the price was determined (Article 18 of the Curriculum Rules).” The grounds set forth in the instant provision are as follows: “Where there are errors in the classification of items (Article 15/1,00) and items (Items 2); “Where the actual number of copies published is more than 10/300 or more than the actual number of copies published in the curriculum books (Article 33(2) of the Curriculum Rules).”

4) Paragraph 3 of this Article, where an order for price adjustment is issued pursuant to the provision of this case, the adjusted amount shall be calculated by taking into account material costs, printing, manufacturing costs, or production costs (referring to the costs incurred in developing or producing books, records, or electronic works and referring to the sum of costs incurred in printing, printing, reproducing, reproducing, fixed costs, and interest on fixed costs), general management costs, other expenses, profits of publishing companies, author's royalty, book development subsidies, supply fees, etc., and the detailed items for each item shall be determined and publicly notified by the Minister of Education.

5) In accordance with the delegation of paragraph 3 above, the Minister of Education shall determine and publicly notify the detailed information of each item for the order of price adjustment (hereinafter “instant notice”), the standards for calculating the amount that serves as the basis for the order of price adjustment for each type of curriculum books (book type, CD type, electronic work (e-book type), electronic work (e-book), electronic work (digital textbook) and electronic work (digital textbook) and matters related to the cost for each item, the calculation method of standard number of copies, etc.

B. As to the violation of the duty to present reasons

1) Article 23(1) of the Administrative Procedures Act provides that when an administrative agency takes a disposition, it shall provide the basis and reasons to the parties. This purport is to exclude the arbitrary decision of the administrative agency and allow the parties to properly cope with the administrative remedy procedure. Therefore, in a case where it is sufficiently known that the parties to the disposition are taking a disposition for any reason, given that the grounds and reasons are sufficiently known at the time of the disposition in full view of the contents stated in the written disposition, relevant Acts and subordinate statutes, and the overall process, etc. up to the relevant disposition, in a case where it is deemed that there is no particular obstacle to the party taking a disposition into an administrative remedy procedure, the disposition cannot be deemed to be unlawful, even if the grounds and reasons for the disposition are not specifically stated in the written disposition (see Supreme Court Decision 2007Du20348, Dec. 10,

2) In light of the above legal principles in light of the facts as seen earlier, it is difficult to deem that there was a violation of the duty to present reasons if the reason under Article 3(3) of the instant provision is the reason for disposition, but if the remaining reason is the reason for disposition, it may be deemed that the duty to present reasons has been violated.

A) The Defendants stated, in each disposition-related to each disposition of the instant case, subparagraph 1(b)3 of the instant provision, the instant provision, subparagraphs 1 and 3 of the instant provision, and the instant notice.

B) In the case of a price adjustment order based on the grounds for disposition No. 3 of the instant provision, the Plaintiffs were aware of the expected number of copies published and the actual number of copies published. Furthermore, the Defendant’s Minister of Education provided data on the calculation method and details of the adjustment price, such as the method of determining the base number through the first, second, and third Council prior to the disposition, presentation sessions, etc., and the pertinent Plaintiffs might not be deemed to have any particular impediment to moving their price adjustment order to the administrative remedy procedure.

C) However, it is difficult to see that the instant provision subparagraph 1 of Article 1 provides that “Where the proportion of manufacturing cost who did not actually accrued in the course of the development and manufacturing of books is at least 15/1,000.” Therefore, in cases where the instant disposition is deemed a ground for disposition, the Defendants are in part of the amount determined as “at least manufacturing cost which did not actually occur” while rendering each of the instant dispositions, and can be seen as having known that the amount accounts for a certain percentage of the amount. However, the counter-party to the disposition can properly cope with the administrative remedy procedure. Nevertheless, each of the pertinent dispositions does not contain any description as to the aforementioned contents.

D) Meanwhile, in a case where the instant provision or the instant notice is the grounds for disposition, it is difficult to deem that the accurate law of the disposition was presented.

3) Based on its stated reasoning, the lower court determined that the presentation of the grounds and reasons for each of the dispositions of the instant case cannot be deemed to have been made to the extent that there was no particular hindrance to moving toward the administrative remedy procedure. However, it is difficult to accept the determination that the lower court, on the grounds as seen earlier, violated the duty of presentation of reasons even when the case was based on the ground for disposition No.

(c) relating to the requirement for a price adjustment order;

1) Based on its reasoning, the lower court determined as follows: (a) in the case of the authorized books listed in the [Attachment List Nos. 4, 7, 11, 14, 19-22, 24-26, 28, 30, 31, 34, 36, 60, 62, 72, 73, 75, 80-82, 84, 85, and 87 (hereinafter “authorized books”) among the authorized books of this case, the actual number of copies published is more than 1,000 parts than the estimated number of copies published; and (b) the other actual number of copies published is more than 1,000 parts, the “price is likely to be determined unfairly” as stipulated in the main sentence of the instant provision, and thus, it is not recognized that there is no proof.

2) In light of the language and text, amendment history, legislative purport, and characteristic of the procedure for issuing an order for price adjustment as seen earlier, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the requirements for the order for price adjustment

D. Ultimately, it is inappropriate for the lower court to have determined that a disposition based on the grounds for disposition No. 3 of the instant provision violated the duty of presentation of reason. However, as long as it is justifiable to have determined that such a disposition was unlawful on the ground that it failed to meet the requirements for the price adjustment order, it does not affect the conclusion of the judgment. Therefore, the allegation in the grounds of appeal related to the violation

3. As to the Defendant’s ground of appeal concerning calculation of standard number of copies

A. Based on its stated reasoning, the lower court determined that: (a) in determining the standard number of copies for publishing companies whose actual number of copies is less than the average number of copies and publishing companies whose average number of copies is more than 3.5%, the Defendant’s former Minister granted 3.5% incentives to the average number of copies; (b) in contrast to the instant notice, the latter calculated the standard number of copies for publishing companies on a entirely separate basis, such as granting incentives to 18.5% based on the actual number of copies issued; and (c) calculated the adjustment price based on the relevant standard number is unlawful, as it is unreasonable

B. Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine as to the calculation of standard number of copies as otherwise alleged in the grounds of appeal.

4. As to the grounds of appeal by the Defendant’s Education related to the addition of the grounds for disposition

A. In an appeal litigation seeking the revocation of an administrative disposition, the agency may add or change other grounds only to the extent that the grounds for the original disposition are identical to the basic facts, and it is not allowed to assert as grounds for disposition on the grounds of separate facts not identical to the basic facts (see, e.g., Supreme Court Decisions 91Nu3895, Feb. 14, 1992; 2009Du15586, Nov. 26, 2009).

B. The lower court determined that the Defendant’s assertion by the Minister of Education, which added subparagraph 1 to the instant provision to the small and medium quantity-authorized books pursuant to the price adjustment order, could not be asserted as the ground for disposition on the ground that the aforementioned two grounds cannot be deemed the same as the basic facts.

C. Examining the aforementioned legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the addition of grounds for disposition, contrary to what is alleged in the grounds of appeal.

5. As to the Defendants’ grounds of appeal related to the circumstance judgment

A. When an administrative disposition is unlawful, the court may render a judgment that the revocation or alteration of the illegal disposition is in principle against the principle of revocation, and that the revocation or alteration of the illegal disposition is extremely inappropriate for the public welfare. Therefore, the application of an assessment judgment shall be limited under extremely strict requirements, and the application of the assessment judgment shall be determined by comparing and comparing the necessity for revocation or alteration of the illegal and unfair administrative disposition and the situation against the public welfare that may arise from the revocation or alteration thereof, etc. (see, e.g., Supreme Court Decisions 94Nu4660, Jun. 13, 1995; 2009Du8359, Dec. 10, 2009).

B. In light of such legal principles and records, the revocation of each of the instant dispositions is difficult to be deemed as significantly inappropriate for public welfare solely on the circumstances cited by the Defendants, such as the appropriateness and stability of the prices of curriculum books for public purposes, the financial burden of the State and local governments, and the need to alleviate the burden of parents on the State and local governments. The grounds for appeal on a different premise are difficult to accept.

6. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)