(영문) 대전지방법원 2017.3.29.선고 2015구합105420 판결

A. The part of the claim to nullify the invalidity of the revised measure under the Enforcement Rule of the Regulation on the Selection of Candidates E on November 4, 2015 and the part of the claim for revocation;

B. On October 19, 2015, part of the claim for revocation of the rejection disposition against Defendant E’s recommendation under the Regulations on Candidates for Appointment of the President of the Dual System ( known as being known) made against the Plaintiff A;

C. The part of the F. F. 18 president’s request for nullification and revocation of the public notice of the recruitment of candidates on December 4, 2015 by the Chairman of the Selection Management Committee for Defendant E candidate;

D. On December 15, 2015, the part of the claim for the cancellation of the invalidation of the receipt of the recruitment of candidates by the president to Plaintiff D on December 15, 2015 by the chairperson of the Management Committee for Selection of Candidates for Defendant E;

E. The provision regarding the selection of candidates for appointment made on December 28, 2012 by Defendant E, and the part regarding the claim to nullify the invalidity of the establishment and enforcement of the detailed regulations under the same provision

all rejections.

3. The remainder of the main claims and ancillary claims against the Defendant B, C, and D are all dismissed.

4. The costs of lawsuit are assessed against the plaintiffs.

Purport of claim

primaryly:

1. The provisions on the selection of candidates for appointment by Defendant E on September 11, 2015 and the enforcement rules of the same provision

Recognizing that an amendment disposition is invalid.

2. A disposition to amend the Regulations on the Selection of Candidates E on November 4, 2015 is null and void.

confirm that it is.

3. Defendant E’s 10 October 19, 2015, the Regulations on Candidates for Appointment of Executive Positions, which was made to Plaintiff A on October 19, 2015, by the Presidential Decree on Candidates for Appointment of Executive Positions.

The rejection disposition of the proposal shall be revoked.

4. The Chairperson of the Committee for Selection of Candidates for Defendant E, who is a candidate for the 18th president of the Republic of Korea on December 4, 2015.

It confirms that a notice disposition is invalid.

5. The Chairperson of the Management Committee for the Selection of Candidates for Defendant E, on December 15, 2015, appointed to Plaintiff D on December 15, 2015

The rejection of a public offering shall be revoked.

6. The provision on the selection of candidates for appointment by Defendant E on December 28, 2012 and the enforcement rules of the same provision

Recognizing that the enactment and disposition is invalid.

Preliminary:

1. The provisions on the selection of candidates for appointment by Defendant E on September 11, 2015 and the enforcement rules of the same provision

The amendment disposition shall be revoked.

2. Revocation of the amendment of the Regulations on the Selection of Candidates E on November 4, 2015 by Defendant E

of this section.

3. The Chairperson of the Management Committee for Selection of Candidates for Defendant E, who is a candidate for the 18th president of the Republic of Korea on December 4, 2015.

The disposition of publication shall be revoked.

Reasons

1. Basic facts

A. Status of the party

Plaintiff A (hereinafter referred to as “Plaintiff Professor”) is an organization formed with F full-time professors pursuant to Article 8 of the F Regulations. Plaintiff B is a F professor and the representative of Plaintiff Professor, and Plaintiff C and D are F Professors.

(b) Implementation of a presidential selection system among candidates for appointment of presidents of F;

1) Defendant E (hereinafter “Defendant E”) enacted, on August 8, 2012, Article 3(2) of the school regulations, “The selection of a general candidate shall not be an election, and the matters pertaining thereto shall be determined separately.” On December 28, 2012, in order to determine matters concerning the selection of a president candidate, the provision on the selection of a candidate for appointment of E (hereinafter “Selection Regulations”) and the Enforcement Rule of the Regulations on the Selection of Candidates for Appointment (hereinafter “Enforcement Rule”) respectively (hereinafter “Enforcement Rule”).

2) Defendant president amended the selection rules and enforcement rules on September 11, 2015 as follows (hereinafter “instant amendment”).

3) On November 4, 2015, the president of the defendant president amended Article 12(1) of the Enforcement Rule as follows (hereinafter “the second amendment”).

A person shall be appointed.

C. Requests for the amendment of the system of selecting candidates for appointment of Plaintiff Professor, President of the Board of Directors, and rejection by Defendant Professor

1) Article 3(2) of the F Regulations on October 15, 2015 provides that “The matters concerning the selection of candidates for the president’s appointment” shall be prescribed separately by the Presidential Decree, and the provisions on candidates for the president’s appointment shall be amended to implement the presidential election system for the president’s appointment, and the provisions on candidates for the president’s appointment shall not be included.”

After its resolution, the defendant president requested that the above professor Association (A) propose on October 16, 2015.

2) On October 19, 2015, the president of the defendant president: (a) requested the submission of a proposal by the professor’s conference above the Plaintiff Professor at the time of the Plaintiff Professor at the time of the following (hereinafter “the refusal of the proposal of this case”).

(d) Selection of candidates for appointment as the 18th president of F;

1) The Defendant president constituted the Management Committee for Selection of Candidates for President (hereinafter referred to as the “Management Committee”) in accordance with the Selection Regulations and the Enforcement Regulations, and the Chairperson of the Management Committee for Selection of Candidates for Defendant E (hereinafter referred to as the “Defendant Chairperson”) issued a public notice of the F 18th president recruitment in accordance with the Selection Regulations and the Enforcement Regulations on November 6, 2015.

2) Plaintiff D intended to submit a letter of support to the Management Committee on November 16, 2015, but Defendant D refused to accept the said letter of support on the ground that Plaintiff D did not submit a certificate of payment of development fund.

3) On November 23, 2015, the Plaintiffs filed an application for the determination of whether the instant public offering was effective on November 23, 2015, as the instant amendment Nos. 1 and 2, the instant refusal to initiate the proposal, November 6, 2015, and the validity of the refusal to receive a person on November 16, 2015. The instant court decided on December 3, 2015 by the Defendant Chairperson to determine the validity of the said public offering notice.

4) The management committee newly decided to proceed with the procedures for the selection of candidates for president appointment, and Defendant Chairperson publicly announced the F 18th president candidate recruitment with the content of demanding the applicant for the president’s candidate to submit a certificate of payment of the development fund in accordance with the selection rules and implementation rules on December 4, 2015 (hereinafter “instant public invitation”).

5) On December 15, 2015, the Defendant Chairperson submitted a document verifying the payment of the development fund by Plaintiff D on December 15, 2015

On the ground that the receipt of the Plaintiff D’s support was invalid (hereinafter referred to as “instant nullification order”).

6) On December 21, 2015, the Plaintiffs filed an application for the enactment of the instant provision, the amendment of the instant provision, the public announcement of the instant public offering, the validity of the public announcement of the invalidation of the instant case, etc. by this Court No. 2015da100593, Dec. 21, 2015, but this Court rejected or dismissed the said application on December 22, 2015.

7) Meanwhile, E Candidates Recommendation Committee (hereinafter referred to as “Recommendation Committee”) selected J and 00 professors as president candidates on December 23, 2015, and recommended them to the Minister of Education on January 11, 2016 as president candidates.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 5, 8 to 12, Eul evidence 14 to 16

(including branch numbers; hereinafter the same shall apply) of each statement, as a whole,

Purport

2. Whether the instant lawsuit is lawful

A. Regarding the second amendment of this case (Paragraph 2 of the primary claim and Paragraph 2 of the preliminary claim)

A litigation for revocation may be instituted by a person having legal interest in seeking the revocation of a disposition, etc. (the first sentence of Article 12(1) of the Administrative Litigation Act), and a lawsuit for confirmation of invalidation, etc. may be brought by a person having legal interest in seeking the confirmation of validity or existence of a disposition, etc. (Article 35 of the Administrative Litigation Act)

In light of the above legal provisions, since the amendment to the second amendment does not affect the rights or interests of the plaintiffs, who are professors or professors' associations composed of F professors, it does not have any legal interest in seeking the validity or revocation of the second amendment. Accordingly, the plaintiffs' lawsuit on this part is legitimate.

B. As to the refusal of the instant proposal (Paragraph 3 of the primary claim)

The defendant president and the plaintiff professor did not have the right to request the amendment of school regulations, and thus, the defendant president alleged that the refusal of the proposal of this case by the defendant president does not constitute a disposition that is subject to appeal litigation.

The administrative agency’s rejection of a citizen’s application shall not be an action that affects the applicant’s rights, obligations, or legal relations, but shall have the applicant’s rights under the law or sound reasoning. According to the aforementioned evidence, Article 96 of the F Regulations provides that “When intending to amend school regulations, the president shall propose an amendment and shall give prior notice of at least 10 days in advance to the Plaintiff, and shall hear the Plaintiff’s opinion. However, in cases of emergency or enforcement of matters prescribed by higher Acts and subordinate statutes, prior notice may not be required.” The F Professors Regulations provides that “The F Professors may deliberate on matters concerning the amendment and abolition of school regulations and regulations.” According to the above findings, the power of the FSC’s amendment to the school regulations cannot be acknowledged as unlawful, on the ground that the right of the Plaintiff’s professor to request the Plaintiff to review the amendment of the relevant school regulations is not granted to the Plaintiff and the Plaintiff’s submission of evidence to the Plaintiff.

C. Regarding the public notice of the instant public offering (Paragraph 4 of the primary claim and Paragraph 3 of the preliminary claim)

The term "disposition, etc.", which is subject to appeal litigation, means the exercise or refusal of public power as an enforcement of law with respect to a specific fact by an administrative agency, and other corresponding administrative actions (Article 2 (1) 1 of the Administrative Litigation Act).

In light of the above provisions of the law, health team, F school regulations, selection regulations, and enforcement regulations shall select a candidate for president appointment at the recommendation committee, and stipulate that the person applying for president appointment shall pay the development fund to the applicant for president appointment. Accordingly, the defendant chairperson requested a letter of payment certificate of the development fund to the applicant for the 18th president candidate based on the above school regulations, etc. As such, the public notice of this case is merely an act of factualizing the procedures for selecting candidates for president appointment as prescribed by school regulations, etc., and the obligation to pay the development fund. The public notice of this case cannot be deemed to only select a candidate for president appointment at the recommendation committee or bear the responsibility to pay the development fund to the applicant. Accordingly, since the public notice of this case does not constitute a disposition subject to appeal litigation, this part of the plaintiffs' objection is also unlawful.

D. As to the public notice of invalidity of this case (Paragraph 5 of the primary claim)

A lawsuit seeking the cancellation of an administrative disposition is a lawsuit seeking the cancellation of an administrative disposition to restore the original state to its original state, and protect and relieve the rights and interests infringed or interfered with the disposition. Thus, even if the disposition is revoked, there is no benefit to seek the cancellation of the disposition if it is impossible to restore the original state to its original state (see Supreme Court Decision 199Da33, Jan. 24, 1997; Supreme Court Decision 2004Du8538, Jan. 11, 2007, etc.).

On December 23, 2015, the Recommendation Committee selected J, 00 professors as candidates for F No. 18 President on December 23, 2015, and on January 11, 2016, the Minister of Education recommended them as candidates to recommend them to the Minister of Education on January 11, 2016, and as such, F’s 18 procedures for the selection of candidates for the 18th president were all terminated (the President appointed 00 professors on February 18, 2016 as the 18th president), and Plaintiff D, even if the invalidation notice of this case is revoked, there is no benefit to seek revocation of the publication of this case, because it is impossible to restore it to its original state. Accordingly, Plaintiff D’s lawsuit is unlawful.

E. Regarding the enactment of the provision of this case (Paragraph 6 of the primary claim)

In the past, the current legal relations affect the current rights or legal status and, in order to eliminate risks or apprehensions with respect to the current rights or legal status, there is benefit of confirmation exceptionally only when obtaining a judgment on confirmation of such legal relations is recognized as valid and appropriate means (see Supreme Court Decision 2010Da36407, Oct. 14, 2010, etc.).

In this case, the obligation to pay KRW 30 million, which was borne by the applicant for president appointment by the enactment of the provision of this case, was changed to the obligation to pay KRW 15 million from the first amendment of this case, so the enactment of the provision of this case constitutes a previous legal relationship, and as long as it is determined as to the illegality of the first amendment of this case, the enactment of the provision of this case constitutes a previous legal relationship.

The seeking confirmation of invalidity has an impact on the rights or legal status of the plaintiffs, and it cannot be said that it is effective and appropriate to eliminate risks or apprehensions with respect to the rights or legal status of the plaintiffs. Therefore, this part of the lawsuit by the plaintiffs is unlawful.

F. Regarding the amendment of the first of this case among the lawsuits filed by the Plaintiff Professor, (Article 1 of the primary claim and Paragraph 1 of the preliminary claim)

In light of the provisions of the Act No. 2-1 of the above 2-A, in light of the health class, the amendment of the No. 1 of this case, or its contents, the recommendation committee selects the candidates for E-Appointment, and the applicants have the obligation to pay KRW 15 million from the development fund, and the rights and interests of the Plaintiff Professor Association do not affect any rights and interests of the Plaintiff Professor Association. Thus, there is no benefit in the legal rate to seek the validity or revocation of the amendment of the No. 1 of this case (the Plaintiff Professor did not dispute as to whether the amendment of the No. 1 of this case infringed upon the authority of the Plaintiff Professor Association to deliberate on the provision of the No. 1 of this case). Accordingly, the lawsuit by the Plaintiff Professor

G. Regarding the amendment of the first of the plaintiff B, C, and D's lawsuit (Paragraph 1 of the primary claim and Paragraph 1 of the preliminary claim)

The amendment of the first instance of this case is not only an internal guidelines or administrative guidelines for the detailed implementation of school regulations, but also a general, abstract, and abstract basis of its contents.

Since it does not regulate rights and obligations or legal relations, the amendment of the first of this case argues that it does not constitute a disposition which is subject to appeal litigation.

On the other hand, if the school regulations or regulations of the National University do not directly change the specific rights and obligations of the members in itself, but if the general and abstract provisions concerning educational organization, school administration, etc. are not an administrative disposition, this cannot be deemed to have been an administrative disposition. However, if it directly affects the specific rights and legal interests of the members even without involvement in a separate enforcement act based on the school regulations, etc., it constitutes an administrative disposition that is subject to appeal litigation. As can be known in the above recognition office, the amendment of the first of this case imposes an obligation to pay KRW 15 million on the applicant for the president appointment with the first of this case, thereby imposing an obligation to pay KRW 15 million on the applicant for the president appointment. Accordingly, the above plaintiffs were subject to restriction to pay the development fund in order to support the assistant after the appointment of the president. Accordingly, the amendment of the first of this case directly affects the right to hold public office, which is the fundamental rights of the above plaintiffs, by itself, without involvement in a separate enforcement act based on it, the amendment of the first of this case constitutes an administrative disposition by the president.

H. Sub-decisions

Therefore, among the plaintiffs' lawsuits against the defendants, only the part seeking nullification or revocation of the plaintiff B, C, and D's amendment of the first of this case (hereinafter referred to as the "disposition of this case") is legitimate, and the remaining parts are all unlawful.

3. Whether the instant disposition is lawful

A. Plaintiff B, C, and D’s assertion

The disposition of this case shall be unlawful for the following reasons and shall be null and void or revoked at least because the defect is significant and apparent:

1) The instant disposition requires an applicant for the president to pay KRW 15 million to the development fund. This is limited by a method other than a law, and the amount was so excessive that it violates the Constitution or violates the Act on the Collection and Use of Donations, which prohibit the collection of donations and the coercion of donations by State agencies, etc. (hereinafter referred to as the “Donation of Donations Act”).

2) In addition, although F’s total number of teachers, students, etc. is the direct election of president candidates, it would infringe upon the autonomy of the university and violate the Public Educational Officials Act if the president issued the instant disposition against the above will of the university.

(b) Relevant statutes;

As shown in the attached Form.

C. Determination

1) Concerning the imposition of liability for the development fund

The main sentence of Article 24(1) of the Public Educational Officials Act provides that the head of a national university (hereinafter referred to as the "head of a national university") shall be appointed by the President on the recommendation of the Minister of Education upon the recommendation of the relevant university. Article 24(2) of the Public Educational Officials Act provides that a university shall have a president recommendation council (hereinafter referred to as the "Recommendation Committee") to recommend the appointment of the president under the main sentence of paragraph (1) of the same Article, while Article 24(3) of the Public Educational Officials Act provides that the recommendation committee shall select a candidate for the president by one of the methods and procedures agreed upon by the relevant university and college teachers (the so-called direct election system), as prescribed by the relevant university and college.

In light of the above facts, the instant disposition requires the above plaintiffs who want to support the E-candidate to pay KRW 15 million for power generation, and the above development fund is not returned in any case, as seen earlier. However, in light of the above provisions of the Public Educational Officials Act and the above facts known, the part on which the obligation to pay the development fund among the instant disposition imposed cannot be said to violate the Constitution or Acts.

A) The above provisions of the Public Educational Officials Act stipulate the matters concerning the authority to hold the office of president’s appointment as president, while respecting the purport that the Constitution guarantees the autonomy of university separately, and thus, stipulates a considerable portion of the matters concerning the appointment of president as prescribed by the law, instead of entirely prescribing the matters concerning the appointment of president as prescribed by the law. Thus, universities and colleges may autonomously establish the method of selecting president candidates and the requirements for its subdivision as prescribed by school regulations or subordinate regulations, and if such contents are not essentially infringed upon the right to hold the office of president’s candidate as president, they cannot be deemed to violate the Constitution.

B) The president of a national university has the authority to establish or amend school regulations within the scope of the law and the overall control of the faculty and staff under his/her control and supervise the school affairs, and to encourage students (Article 15(1) of the Higher Education Act). School regulations include matters that may have a significant impact on the faculty and students, such as the basic organization and conferment of degrees, etc. of the university. The president is not only in the position of representing the university, but also in the position of representing the university, and the influence of the administrative affairs, personnel affairs, etc. of the university extends to both the school and the local community. In light of the position of the president of a university, even if the instant disposition was required to pay KRW 15 million to the applicants for appointment of the president, it cannot be said that his/her official authority has been infringed upon.

C) According to each subparagraph of Article 56(1) of the Public Official Election Act and Article 49(1) of the Local Education Autonomy Act, a deposit amount of KRW 300 million for the presidential election, KRW 50 million for the City/Do Governor or Superintendent of the Office of Education, KRW 15 million for the National Assembly member, according to the relevant election, shall be paid to a person who intends to file a candidate for a candidate. In light of the status of president of a university as seen earlier, it cannot be said that the amount of the development fund to be paid by the above Plaintiffs is excessive.

D) The F Development Fund Foundation is a legal entity that can collect donations, and the above Plaintiffs are paid the Development Fund only in cases where they support the president candidate for appointment, and the issue of whether to grant or pay the Fund is entrusted to an individual’s choice. Therefore, it is difficult to deem that the instant disposition was forced to pay money and valuables to the above Plaintiffs.

2) As to the failure to implement a straight line system

In light of the above provisions of the Public Educational Officials Act, the method of selecting candidates for the president shall be one of the basic matters concerning the organization of the national university, which may be prescribed by school regulations, etc., and the school regulations and subordinate regulations enacted or amended by the relevant university within the scope of statutes and regulations shall be legally binding as a self-governing norm of the university, and this shall be said to be the doctor of the relevant university.

In other words, the method of selecting a candidate for the president is entrusted to the autonomous choice of the relevant university in accordance with the Public Educational Officials Act. Thus, a university may determine the method of selecting a candidate for the president as a school regulation, etc. If such school regulation, etc. do not coincide with the will of a teacher and an employee, it may be amended to change the method of selecting a candidate. Such change cannot be said to infringe on the nature of education or the autonomy of a university or violate education-related Acts and subordinate statutes (see Supreme Court Decision 2013Du26408, Jun. 24, 2015). Thus, the procedure of selecting a candidate for the president in accordance with the school regulations, etc. enacted or amended as above is lawful as stipulated by the Public Educational Officials Act.

As seen earlier, the F School Regulations, the Selection Regulations, and the Enforcement Rules provide for the selection of general candidates for appointment by the method of a livering system. The instant disposition is reasonable as determined by the above school regulations, etc., even if a considerable number of F teachers or students consent to the 18th president appointment system at the time of the selection of candidates for appointment, insofar as the method of selecting candidates for appointment of president is not changed to the PON system by amending school regulations, etc., the instant disposition cannot be said to infringe on the autonomy of university or violate the Public Educational Officials Act, and is lawful as determined by the university.

D. Sub-committee

Therefore, the above plaintiffs' assertion that the disposition of this case is illegal is without merit.

4. Conclusion

Therefore, the remaining parts of the lawsuit against the Defendants and the lawsuit against the Defendants of Plaintiffs B, C, and D, with the exception of the claim for nullification of the instant disposition, and the claim for revocation, are unlawful. Accordingly, the remaining main claims and preliminary claims of Plaintiffs B, C, and D are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Judges

Judges of the presiding judge only;

Judges Kim Jong-ho

Judges Bo Han-han

Site of separate sheet

(Attachment Form)

Relevant statutes

▣ 헌법

Article 25

All citizens shall have the right to hold public office under the conditions as prescribed by the Acts.

Article 31

(4) Educational independence, expertise, political neutrality, and autonomy of universities and colleges shall be guaranteed as prescribed by Act.

▣ 교육공무원법

Article 24 (Appointment of Head of University)

(1) The heads of universities or colleges (referring to schools referred to in the subparagraphs of Article 2 of the Higher Education Act, but excluding public universities; hereafter the same shall apply in this Article and Articles 24-2, 24-3, and 25 through 27) shall be appointed by the President on the recommendation of the Minister of Education and upon the recommendation of the relevant university: Provided, That where the head of a newly established university or college is appointed, or a person who serves as the principal of a university or college due to a change in the name of the head of the relevant university or college is appointed as the president of the relevant university or college, and where a person who serves as the president of the relevant university or college is appointed as the principal of the relevant university

(2) A university appointing and recommending committee for the head of a university (hereinafter referred to as "nomy committee") shall be established in a university to recommend the appointment of the head of a university under the main sentence of paragraph (1).

(3) A recommendation committee shall select a candidate for the head of the relevant university by any of the following methods, as prescribed by the relevant university:

1. Selection at a meeting of the recommendation committee;

2. Selection according to the methods and procedures agreed upon by the faculty members of the relevant university;

▣ 기부금품의 모집 및 사용에 관한 법률

Article 5 (Restrictions, etc. on Collection and Receipt of Donations by State, etc.)

(1) No corporation or organization established with an investment or contribution from the State, a local government, its affiliated agencies, public officials, or the State or a local government shall collect donations: Provided, That a corporation or organization established with an investment or contribution from the State or a local government prescribed by Presidential Decree may collect donations.

Article 6 (Prohibition, etc. of Forced Contribution of Donations)

(1) No fund raiser or his/her employee shall compel any third person to contribute a donation.

참조조문

-기부금품의 모집 및 사용에 관한 법률

-대한민국헌법

-지방교육자치에 관한 법률 제49조 제1항