[2] Requirements to issue an order for price adjustment on the grounds that the price of authorized books and approved books may be determined unfairly due to the reasons set forth in Article 33(2) of the Curriculum Rules, and whether the case where the reason set forth in each subparagraph of the above Article is acknowledged on the curriculum books subject to an order for price adjustment, is presumed to have been “an unreasonable concern that the price of the curriculum books will be determined” (negative)

1. As to the grounds of appeal by Plaintiffs Dong-si Publication Co., Ltd. (hereinafter “Plaintiff Dong-Publication”) (hereinafter “Plaintiff Dong-Publication”) and the rest of the Plaintiffs, upon the birth of “stock company”), Lee B-M, music department, etc.

A. As to the violation of the principle of retroactive prohibition of legislation

1) Retroactive legislation can be divided into a petition-based legislation that allows the application of a new legislation to the facts or legal relations that have already been completed, and a quasi-petition-based legislation that allows the application of the existing facts or legal relations to the existing ones or legal relations. Of these, a petition-based legislation that deprives an individual of his/her legal status that has already been formed under the existing law through an ex post legislation is in principle not permitted in accordance with the principle of a rule of law that covers the protection of individuals’ trust and legal stability. On the other hand, in principle, the non-petition-based legislation is allowed in the process of a bridge between the reasons for the public interest requiring the retroactive effect and the reasons for personal protection demanding the protection of confidence. In addition, the principle of non-appeal-based legislation is merely the meaning that the law cannot be applied to the facts that have already been completed before the entry into force of the law, but does not limit the application of the law on the requirements that have already occurred (see Supreme Court Decision 2001Du5705, Nov. 13, 2001).

2) Meanwhile, Article 33 of the former Regulations on the Curriculum (amended by Presidential Decree No. 25185, Feb. 18, 2014) provides that “The price of authorized books and approved books shall be determined by the publishing company which agreed with the author” (Article 1). The Minister of Education may recommend the price adjustment through the Deliberative Council where the price of authorized books and approved books is likely to be determined unreasonably.” Meanwhile, Article 29(2) of the former Regulations on the Curriculum (amended by Presidential Decree No. 25185, Feb. 18, 2014) provides that “The Minister of Education may recommend the price adjustment through the Deliberative Council where the price of authorized books and approved books is likely to be determined unreasonably.” However, he/she was able to issue a “order for price adjustment.”

Article 2 of the Addenda to the amended Presidential Decree No. 25185 provides that “The amended provisions of Article 33 shall apply from the authorized books and approved books, the price of which is not finally determined, after the author or publisher, etc. conducted an examination or an application for approval according to the official approval or an official announcement of recognition conducted before this Decree enters into force (hereinafter “the Addenda provisions of this case”).”

3) The lower court determined that the instant supplementary provision cannot be deemed to violate the principle of prohibition of retroactive legislation, etc. on the ground that (i) the amendment of the Regulations on Curriculum Books (Presidential Decree No. 25185, Feb. 18, 2014) applied the curriculum books subject to which the final price has not yet been determined, and (ii) the instant supplementary provision cannot be deemed to violate the principle of prohibition of retroactive legislation, etc. on the ground that the public interest enjoyed by maintaining the appropriateness of the price of the curriculum books, rather than the expectation that the price of the instant curriculum books would be determined according to the prices desired by the said Plaintiffs

In light of the above legal principles and records, such determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the prohibition of retroactive legislation or the protection of trust

B. Regarding the requirements for price adjustment order and the burden of proof

1) Article 29(2) of the Elementary and Secondary Education Act provides that “The scope, writing, authorization, approval, publication, supply, selection, and price assessment, etc. of curriculum books shall be prescribed by Presidential Decree.” Accordingly, Article 33(1) of the Regulations on Curriculum (hereinafter “Rules on Curriculum”) provides that “The price of authorized books and approved books shall be determined by the publishing company which entered into an agreement with the author,” and Article 29(2) of the same Act provides that “Where the price of authorized books and approved books is likely to be determined unreasonably due to the following reasons, or the cost invested in the development of curriculum (hereinafter “fixed price”) is not reflected in the price even after the publishing company collects the entire price, the Minister of Education may order the adjustment of the price through the Deliberation Council (referring to the Deliberation Council for Textbooks under Article 18 of the Regulations on Curriculum) where the number of curriculum books and approved books is not determined by Article 33(1) of the same Act, which provides that “If the number of curriculum books and approved books is not determined by Article 10(3) or more than the actual number of curriculum items is determined by 10.”

2) In light of the language and text, amendment history, legislative intent, etc. of the instant provision, in order to issue an order for price adjustment on the grounds that “the price of authorized books and approved books may be determined unfairly due to the reasons set forth in each subparagraph” as stipulated in the instant provision, it is separately recognized that the pertinent curriculum books fall under the reasons set forth in each subparagraph of the instant provision, as well as that there exists a concern that the price will be determined unfairly due to such reasons. In this case, the pertinent curriculum books subject to an order for price adjustment may not be deemed to be the presumed relation that “the price of the curriculum books may be determined unfairly” is presumed to be “the concern that the price of the curriculum books would be determined unfairly” on the grounds that the grounds set forth in each subparagraph of

(1) Whether the price is likely to be determined unfairly or not shall be determined by comprehensively taking into account excessive benefits of the publishing company and the increase in the consumer’s economic burden, etc. as a whole, with the degree of approval seal attached thereto. It is difficult to readily conclude that the publishing company gains excessive benefits at all times or increases the consumer’s economic burden on the ground that there are grounds prescribed by each subparagraph

② It is difficult to view that the correlation between the reasons under each subparagraph of the instant provision and the price actually determined or desired by the publishing company is clear. Despite the existence of the reasons under each subparagraph of the instant provision, the price determined or desired by the publishing company may not be objectively unreasonable from the perspective of objective.

③ As such, the grounds of each subparagraph of this case’s provision and concerns over determining unfairly the price may be conceptually distinguished, and the correlation may not be immediately acknowledged, it cannot be deemed that the above illegality is presumed as a matter of course on the ground that the above grounds are recognized.

3) According to the reasoning of the lower judgment, the following circumstances are revealed.

A) The Plaintiffs published the 2014-year textbook that is used at elementary schools and high schools as indicated in the attached Form 1 Disposition List (hereinafter “Attachment 1 Disposition List”) as indicated in the lower judgment (Plaintiff 4 operates the ○○ Publication Company that publishes Textbooks).

B) Among the textbooks listed in the separate sheet No. 1 attached hereto, the disposition authority is the authorized textbooks, the Defendant Minister of Education, and the textbook, the Defendants except the Defendant’s Minister of Education, are the authorized textbooks (hereinafter “instant authorized books” and “instant approved books” among the textbooks published by the Plaintiffs, and the instant authorized books combined with the authorized books and the approved books.

C) The Plaintiffs determined the price of the textbook of this case as indicated in the “voluntary Price” column in the attached Form 1 List.

D) The Defendants ordered the Plaintiffs to adjust the price of the textbook of this case as indicated in the “Adjustment Price” column of Disposition 1 as stated in the “Disposal Date” column of Disposition 1 (hereinafter “instant disposition”). The instant disposition is indicated in Disposition 1 No. 1 or 3, as stated in the “founded Act” column of Disposition 1 as stated in the relevant Act and subordinate statutes.

4) On the premise of the foregoing factual basis, the lower court determined that the grounds for the disposition of issuing an order for price adjustment under the provision of this case with respect to each of the above curriculum books are acknowledged as to the curriculum books listed in Nos. 2 through 8, 10 through 14, and 17 among the annexed disposition No. 1’s list, and that the price of the pertinent curriculum books could be determined unfairly if the grounds for No. 1 and No. 3 of this case were revealed, on the premise that the price of the pertinent curriculum books could be determined unfairly. Thus, the lower court determined that the grounds for the disposition of issuing an order for price adjustment under the provision of this case with respect to each of the above curriculum books were acknowledged, unless the Plaintiff’s East Publication, DaM, and music and music were specifically asserted

5) However, in light of the relevant laws and legal principles as seen earlier, it is not presumed that the causes of each subparagraph of the instant provision are recognized and the price is likely to be determined unfairly. Thus, the Defendant’s Minister of Education must prove not only that the causes of each subparagraph of the instant provision are recognized, but also that the price is likely to be determined unfairly.

6) In so determining, the lower court erred by misapprehending the legal doctrine on the requirements for a price adjustment order or the burden of proof, etc., thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to Defendant Education’s ground of appeal

The lower court determined that the order of price adjustment for the authorized books listed in Nos. 9 and 18 in the annexed Table 1 among the order of price adjustment on the authorized books of this case issued by the Defendant Minister of Education did not meet the requirements of No. 1 of this case.

Examining the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

3. As to the grounds of appeal by Defendant Ulsan Metropolitan City Superintendent, the Superintendent of the Office of Education of Jeollabuk-do, and the Superintendent of the Provincial Office of Education of Chungcheongnam-do (hereinafter “Defendant superintendent of education”).

The lower court determined that the procedural defect of the violation of Article 23(1) of the Administrative Procedures Act was recognized in each of the dispositions of the instant case, on the ground that the statutes based on the written disposition of the Defendant’s Office of Education’s order on the price adjustment order on the approved book of this case only stipulate only Article 23(1)1 or 3 of the instant provision and do not specify the grounds and reasons for the disposition.

In light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the basis of disposition and the presentation of reasons, contrary to what is alleged in the grounds of appeal

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by Plaintiff East-si Publication, ABM, and Music life, the part of the judgment below against the above plaintiffs is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Defendants’ appeals are all dismissed, and the costs of appeal by Defendant’s Superintendent of the Office of Education are assessed against the losing party. It is so decided as per Disposition by the assent of all participating

Justices Park Sang-ok (Presiding Justice)