[학교환경위생정화구역내금지행위및시설해제신청거부처분취소][공2007.4.15.(272),539]
In making an administrative disposition on the cancellation of prohibited acts and facilities in the school environmental sanitation and cleanup zone under the former School Health Act, the purport that deliberation by the school environmental sanitation and cleanup committee is required, and whether the administrative disposition omitted from such deliberation procedure is illegal (affirmative)
The purport of an administrative agency’s deliberation by the school environmental sanitation cleanup zone under the former School Health Act (amended by Act No. 7700 of Dec. 7, 2005) is to ensure fairness and transparency in administrative disposition by reflecting the opinions of experts and interested persons and the opinions of residents in relation thereto and the opinions of residents in the decision-making of the administrative agency. Furthermore, in light of the fact that the request for deliberation is based on the law, and the contents of deliberation are not merely related to the form of the procedure but also related to matters that may affect the administrative disposition regarding the prohibition of act and the cancellation of facilities. Thus, if the above deliberation was omitted in the course of the administrative disposition on whether to cancel the prohibited act and facilities, it cannot be deemed that such defect does not affect the validity of the above administrative disposition or that it is merely a minor degree, barring special circumstances, it constitutes grounds for revocation of administrative disposition.
Article 6 of the former School Health Act (amended by Act No. 7700 of Dec. 7, 2005); Article 4-3 of the former Enforcement Decree of the School Health Act (amended by Presidential Decree No. 19216 of Dec. 30, 2005)
Plaintiff
The head of the District Office of Education in Chungcheongnam-do Office of Education
Daejeon High Court Decision 2006Nu413 decided September 28, 2006
The appeal is dismissed. The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
The purport of an administrative agency’s deliberation by the school environmental sanitation cleanup committee is to ensure fairness and transparency in administrative disposition by having experts and interested persons’ opinions and residents’ opinions reflected in the decision-making of the administrative agency in order to ensure the most democratic intentions consistent with the public interest and to ensure fairness and transparency in administrative disposition. Furthermore, the request for deliberation is based on the law, and the contents of the deliberation are not merely related to the form of the procedure, but also may affect the administrative disposition as to whether to prohibit acts and cancel facilities. In light of these circumstances, if there is any defect in the administrative disposition on whether to cancel the prohibited act and facilities, such defect cannot be seen as not affecting the validity of the above administrative disposition or mere minor degree, barring any special circumstances.
In the same purport, the court below is just in holding that the above disposition was unlawful since there is a defect in the second rejection disposition of this case without deliberation by the school environmental sanitation cleanup committee under the proviso of Article 6 (1) of the former School Health Act, since it did not go through legitimate procedures as provided by the law to the extent of the grounds for revocation, and there is no error of incomplete deliberation like the grounds for appeal.
Therefore, the appeal is 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 Yang Sung-tae (Presiding Justice)