2020 Gohap76418 Revocation of Disposition of Refusal

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April 15, 2021

April 29, 2021

1. The Defendant’s disposition of failure to conduct an examination for promotion of Grade VI (Assistant Principals) in 2020 against the Plaintiff on July 3, 2020 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

(a) Status of a party;

원고는 D교도소에 재직 중인 7급 교정직공무원으로서, 2020. 6. 27. 실시된 C직 6급 (◌◌) 승진시험(이하 ‘이 사건 시험’이라 한다)에 응시하였다. 피고는 법무행정 등에 관한 사무를 관장하는 중앙행정기관으로 원고의 임용권자이다.

B. Implementation plan of the instant examination

○ Number of selected persons

(Attachment – omitted)

Qualifications for application: A public official of Grade VII (School Superintendent) in correctional service as of the date of the request for examination (as of June 3, 2020), and two years have elapsed since the minimum period of service required for promotion.

○ Examination Subjects: Correctional and Criminal Procedure Act

(4 multiple-choice 25 questions, total of 50 questions, and total of 100 points for each subject)

Successful applicants: A successful applicants shall be determined by the written examination only in accordance with the promotion regulations for correctional officers, and from among the score of at least 40 percent of the total points of each subject and at least 60 percent of the total points of all subjects, the combined results of the written examination shall be the sum of 60 percent and the grade 40 of the list of candidates for promotion, and the final number of persons to be selected by the local correctional agency shall be the successful applicants (the successful applicants shall be selected according to the schedule of class 6 regular transfer,

C. Objection to the issue of this case and confirmation of legitimacy

1) On June 27, 2020, the Defendant opened a preliminary answer to the instant examination. Among them, it shall be deemed as to the issue No. 13 of correctional science among the instant examination subjects (hereinafter referred to as “instant issue”), and the Defendant dealt with the instant answer, and seven applicants raised an objection.

[The problem of this case] 13. 13. Sentencing is correct in the explanation of the use of protective equipment under the penal law? ① In the case of using protective equipment, a prisoner who is wearing protective equipment is "solitary confinement for treatment" unless there are special circumstances. ② In the case of using protective equipment, it is recorded in the examination book of the use of protective equipment, but in the case of using both handets in a medium guard facility, it can be replaced by a escort plan or a register of confinement. ③ In the case of using protective beds or protective clothes, the use of protective equipment can not be used as other protective equipment.(4) The head protective equipment can be used when there is a large risk of suicide and self-harm, and other protective equipment can be used together to

2) On July 1, 2020, the Defendant held and deliberated by the Ministry of Justice’s corrective planning division with a fixed answer committee on the instant issue, on the ground that it did not discover any special problems, and confirmed the final answer of the instant issue as the answer clause 2.

(d) A failure disposition;

On July 3, 2020, the Defendant publicly announced the list of successful applicants for the instant examination, and rendered a disposition of failure to pass the examination (hereinafter “instant disposition”) to the Plaintiff.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, and 3-1, 2-2, Gap evidence 4-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

At the time of the examination of this case, the Plaintiff entered the answer of this case in three answers. However, the Defendant’s answer to this case’s question’s question’s question’s answer to this case’s question’s question’s question’s question’s question’s answer to this case’s question’s question’s answer to this case’s question’s question’s answer to this case’s question’s question’s fingerprints, and there is no right answer in view of this case’s issue’s question’s question’s question’s question’s question’s answer

B. Determination

1) Organization of issues

The problem of this case is that the use of protective equipment under the Administration and Treatment of Correctional Institution Inmates Act (hereinafter referred to as the "Act on the Execution of Punishment and Treatment of Correctional Institution Inmates") is correct.

Of them, ①, ③, ④ there is no dispute between the parties in terms of fingerprinting the answer, ② The Plaintiff asserts that the answer is the molding fingerprint, whereas the Defendant asserts that the answer is the correct fingerprinting fingerprinting and is the correct answer of the problem of this case.

Therefore, the issue of the instant case is whether the instant disposition constitutes a deviation or abuse of discretionary power, as the answer is objectively correct, and if the applicant is entitled to select it as a legitimate answer, it constitutes a preliminary question to determine whether the instant disposition constitutes a deviation or abuse of discretionary power.

2) Relevant legal principles

In general, in setting questions as an administrative act, the setting commissioner has discretion in a sense that it can freely determine what kind of matter is within the scope of statutory provisions, and what language and text forms of the question can be formed. However, since such discretion has limitations to be properly exercised in the contents and composition of the setting so as to evaluate the ability of the examinees in line with the purpose of the examination, when exercising its discretionary power exceeds its limits, the setting act is unlawful (see Supreme Court Decisions 97Nu1371, Jul. 10, 1998; 99Da33960, Apr. 10, 2001). Meanwhile, when the setting of a multiple-choice issue makes it difficult to select a legitimate answer by making it difficult to do so, the setting commissioner’s discretion shall be deviates or abuse of discretionary power when it makes it difficult to choose a legitimate answer by making it difficult to do so (see Supreme Court Decisions 200Du3960, Apr. 10, 2005; 209Du36969, Mar. 16, 2001).

3) Whether the discretion is deviates or abused or not

In light of the following circumstances, it is reasonable to deem that there was an error of exceeding the scope of discretion in setting up the issue of this case and making a correct answer, or abuse of discretionary power, in light of the following circumstances, which are acknowledged as a whole by comprehensively considering the results of each request for appraisal to K professors at the I University J of this Court and LAU M professors at the public safety school of LA and the overall purport of each request for appraisal by the KI University.

Therefore, the problem of this case should be dealt with without correct answer, and the defendant's disposition of this case which is different from this premise should be revoked illegally. The plaintiff's assertion pointing this out has merit.

A) The instant issue: (2) evaluation of the former part of the answer port

The question of this case (2) is related to the "record of the examination register of the use of protective equipment", and is set up based on the main sentence and proviso of Article 181 of the Enforcement Rule of the Criminal Administration Act.First, the problem of this case (2) The first part of this case shall be recorded in the examination register of the use of protective equipment, and in the case of using protective equipment, it shall be recorded in the examination register of the use of protective equipment."

B) Evaluation of the latter part of this case’s question

Next, the part of the problem of this case (2) In the case of using the handets for the accompanying defense of prisoners in the guard facility, the record may be replaced by the content of the escort plan or the register of confinement.

Article 97, Paragraph 1 of the Criminal Procedure Act lists the cases where a correctional officer can use protective equipment against a prisoner, "correctional officers" list the cases where a prisoner is escorted to a place outside of a correctional institution, such as transfer, court attendance, or other cases where a prisoner is highly likely to escape, commit suicide, injure himself/herself, or injure other persons (Article 97 (1) of the Criminal Procedure Act) (Article 2 of the same Act), the cases where a correctional officer obstructs a correctional officer's legitimate execution of his/her duties (Article 3), the cases where a correctional officer damages the facilities, equipment, etc. of a correctional institution or

Article 181 of the Enforcement Rule of the same Act provides that "a correctional officer may use protective equipment pursuant to Article 97 (1) of the Act, if he/she uses protective equipment pursuant to the attached Form 10, record it in an examination book of use of protective equipment: Provided, That where protective equipment is used pursuant to Article 97 (1) 1 of the Act or a handets are used for protective custody of prisoners in a middle guard facility, the record may be substituted by a escort plan or a register of

In addition, the prior meaning of "defense" is "the task of monitoring a criminal suspect or a criminal defendant at any place outside of a correctional institution", and the term "defense" under Article 97 (1) 1 of the Criminal Execution Act is called as "the purpose of transporting a prisoner to an area outside of a correctional institution", and the case of accompanying a prisoner using protective equipment inside a correctional institution does not constitute a escort. Thus, the use of protective equipment in a guard facility cannot be prepared by a escort plan because the use of protective equipment constitutes a movement inside the facility. Thus, the contents to be stated in the review book of using protective equipment cannot be substituted by a escort plan, rather than a register of confinement.

In full view of the language and purport of the above provisions, the proviso of Article 181 of the Enforcement Rule of the Act on the Execution of Punishment, etc., is consistent with the interpretation of the language and text, and is naturally natural in the context of the context, where a prison officer uses protective equipment while escorting a prisoner to a place outside of a correctional institution, such as transfer, court attendance, and other places outside of a correctional institution pursuant to Article 97(1)1 of the Execution of Punishment Act, the record of the escort plan may replace the content of the escort plan, and where both handets are used in a guard facility for the guard of prisoners, the record of the register of confinement may replace the content of the register of prisoners.

However, the problem of this case (2) The latter part of the answer is that, in a way that can substitute the record of the examination register using protective equipment, the "plan for the escort and the register of confinement" is selectively stated. Thus, the latter part of the answer is that, in the case where the two handets are used in the guard, one of the plan for the escort or the register of confinement may be selected in lieu of the record. Therefore, it can be concluded that one of the two methods is just and correct, but the whole can be regarded as a right fingerprint.

However, as seen earlier, in cases where both grandchildren A are used in a middle guard facility for the accompanying security of prisoners, not in the escort plan, but in the content of the register of confinement, the records can be substituted by the contents of the register of confinement. As such, in the latter part of the second answer of this case, the part of "in cases where both grandchildren are used for the accompanying security of prisoners in the middle guard facility, the contents of the escort plan may substitute the records of the escort plan."

(B) In addition, in the case of this case by modifying Article 181 of the Enforcement Rule of the Act, the Defendant only deleted the part of “use of protective equipment,” which is stipulated in the first head of the above provision, “use of protective equipment,” i.e., transport, withdrawal, or any other place outside the correctional institution when escorts the prisoners to the place outside the correctional institution,” and it is clear that the part of “transport plan,” which is stipulated in the latter part of this provision, remains intact. If: (b) if the questions of this case were to be drawn with the intent to take the answer of this case into consideration as the correct answer of this case, it is sufficient to view that the omission of the latter part of the “plan,” as seen above, is an error in the preparation. (2) In the case of this case, as stated in the latter part of Article 97(1)1 of the Enforcement Rule of the Act, it is sufficient to replace the register with the protective equipment, and thus, it can only be substituted with the register of fingerprints.

(C) the legitimate ground for the treatment without a correct answer;

In the issue of this case, four answers were added to or deleted from new contents in the relevant provisions, such as the Act on the Execution of Punishment, and the method and intent of setting them are the same or similar level. In other words, the answer is that (i) the part of solitary confinement for the sake of guidance is changed to "solitary confinement for treatment"; (iii) the part of the reply is added to "solitary confinement for treatment"; and (iv) the part of the reply is changed to "suic and self-harm". (ii) The answer is only partially deleted from "the first part of Article 181 (1) 1 of the Enforcement Rule of the Act on the Execution of Punishment and Execution of Punishment." (ii) The content and degree of the answer can be evaluated to be different from the content and degree of fingerprinting that the answer falls under the mold, (iii) the answer can be evaluated to be a level similar to the answer.

Furthermore, it is difficult to see that the answer in this case (2) is clearly distinguishable from other answers or has other characteristics to the extent that the answer in this case is to be monthly and rapid compared with other answers. It is reasonable to see that the general average applicant who has made the best efforts is not easy to expect that the question in this case is to choose two times as a correct answer, and that the preparation has reached the degree of interference with the understanding of the questions and the answer choice (in the nature of the multiple-choice examination problem, the subject matter of the preparation and the direction of the answer choice should be objectively grasp from the examination problem itself, and it is not possible to determine by writing the subject matter of the arbitrary subjective preparation which goes beyond the limit of the text without any special circumstance, and without any specific circumstance, it is unreasonable to request the applicant to choose one answer from the applicant, taking into account the explicit and implied intent of the applicant).

As long as it is interpreted to the effect that a escort plan may be used when using protective equipment within a heavy guard facility, the professor related to the correction following the fact-finding or appraisal commission of this court also refers to the opinion that "it constitutes a cryp fingerprints, and even if there is no answer about the issue of this case, it shall be treated as a cryp fingerprints."

Therefore, the problem of this case is the degree that the defect could not be properly selected from an average level of applicants, so it is reasonable to treat the defect as being without a correct answer.

In contrast to other answers, there is no clear circumstance to deem that the answer of this case (2) is superior to that of the other answers, and that it falls under logical, rational, neutral, and objective choice, or that it is inevitable to respond to any of the arguments.

D) Sub-committee

As above, since the illegality of the defendant's deviation and abuse of discretionary power is recognized in the setting of the issue and the decision of the answer, the disposition of this case shall be revoked in an unlawful manner (if the issue of this case is dealt with without correct response, the total score of the plaintiff pursuant to Article 4 of the Promotion Regulations for Correctional Officials (=60% of the examination of this case + 40% of the evaluation score on the list of candidates for promotion) shall be deemed to have been passed additionally by the plaintiff, so long as the plaintiff seems to have passed further.)

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.