[1] Whether it is discretionary for a university to determine the qualifications for admission, selection methods, etc. or to determine the success or failure to pass an examination in accordance with the standards when it selects applicants for admission (affirmative) and the limitation thereof

[2] In a case where Gap and Eul et al. applied for the part of the camping district of Byung University, Gap et al. for the entrance of Byung University, and passed the examination of Eul et al. on the ground of "disqualifications for support" as prescribed by the Presidential Decree, Eul et al., and Eul et al. were issued without meeting the standards set forth in the "Administrative Guidelines for University Admission" of the Jung-gu Association, and Gap et al. sought confirmation of successful applicants for admission, the case held that the court below erred by misapprehending the legal principles on the grounds that Eul et al.'s certificate of successful applicants for admission was consistent with objective facts, and that Eul et al.'s certificate of successful applicants for admission cannot be deemed as not meeting the support requirements set forth in the Presidential Decree, and that the above work guidelines cannot be deemed as binding in selecting applicants for admission of Byung University, and based on this, Gap's failure disposition against Byung et al. was unlawful by abusing and abusing discretion on the selection applicants for admission.

[1] Article 31(4) of the Constitution, Article 34 of the Higher Education Act, Articles 31 and 34 of the Enforcement Decree of the Higher Education Act / [2] Article 31(4) of the Constitution, Article 34 of the Higher Education Act, Articles 31 and 34 of the Enforcement Decree of the Higher Education Act

[1] Supreme Court Decision 2006Da23817 decided Jul. 13, 2006 (Gong2006Ha, 1497)

Plaintiff (Law Firm Lee & Lee, Attorneys Kim Jong-hoon et al., Counsel for the plaintiff-appellant)

School Foundation Gyeong-Gyeong Institute (Law Firm Young-chul, Attorneys Kim Young-young, Counsel for defendant-appellant)

Seoul High Court Decision 2016Na207095 decided April 7, 2017

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The record of this case reveals the following facts.

A. The Defendant’s eligibility to support the part of the campus during the 2014-2014-Haak River operated by ○○ University was ① a person who had personal injury or participated players who participated in the last or last half of the 2014-2014 (*: the overall - the overall - king and the last half of the king, the king and the king-Yak-Jak-gu, the Cheongak-gu, the first half of the king-Yak-gu, the second half of the king-Yak-gu, the first half of the 2014-20-Maak-gu, the second or the second half of the YY-gu, the second half of the 2014-20-Maak-gu, the participation rate of at least 28 percent, the participation rate of at least 24 percent, the participation rate of at least 26 percent, the participation rate of at least 18-30 percent, and the defense rate of not more than 5.

B. Around September 2014, the Association of Young-gu, an incorporated association (hereinafter “Yong-gu Association”) issued to the Plaintiff a certificate of sports performance: ① the Plaintiff’s participation in the 2014 Goong-gu, Young-gu, Young-gu (Seoul-gu), the participation in the 2014 Young-gu, the Mali-gu, the Mali-gu, the Mali-gu, the Mali-gu, the Mali-gu, the Mali-gu, the Mali-gu, the Mali-gu, the Mali-gu, the Mali-gu, the Mali-gu, the Mali-gu, the Mali-gu, the 16th Mari-gu, the Mari-gu, the Mari-gu, the Mari-gu, the 2014, the Maak-gu, the Mari-gu, the Maak-gu, the 2014.

C. On the other hand, on April 19, 200, the Camp-gu Association prepared a “administrative guidelines related to university admission” (hereinafter “instant work guidelines”) with the content of strengthening the standards to issue a certificate of sports performance only when the national competition period is administered more than one class, the number of classes is covered by more than one class, and the third party has completed three class of classes, and notified the head of the relevant City/Do branch office thereof.

D. The Plaintiff applied for an interview at ○○ University in 2015, but failed to meet the requirements for support. However, Nonparty 1 and Nonparty 2 passed an interview at the time of entrance. In order to ensure fairness and objectivity at the time of entrance on February 16, 2015, the Defendant inquired about the facts of the instant match performance certificate submitted by Nonparty 1 and Nonparty 2 to the Camp-gu Association. Accordingly, on March 3, 2015, the Camp-gu Association confirmed that there was no more than the actual results of Nonparty 1 and Nonparty 2 stated in the said match performance certificate, and on September 15, 2015, each of the above match performance certificates confirmed that Nonparty 1 and Nonparty 2 are materials that prove that they are consistent with the actual facts of the match participation at the time of entrance.

2. The lower court, citing the reasoning of the first instance judgment, determined as follows.

A. According to the certificate of performance of each of the above games issued by Nonparty 1 and Nonparty 2, Nonparty 1 opened only 2/3 of the above competitions, and Nonparty 2 opened only 30,000 of the above competitions. As such, each of the above match performance certificates does not meet the issuance standards set out in the instant work guidelines. Accordingly, since each of the above match performance certificates was issued unlawfully, it is unlawful for them to pass the examination of documents based on the above documents.

B. When ○○ University was admitted to the part of ○ University’s camp, 11 applicants for 11 recruitments, and the Plaintiff passed the recruitments unless there exist grounds for disqualification. However, among “at least 24 other applicants for participation, at least 20%,” which is the requirements for the Plaintiff’s eligibility for support, the Plaintiff is required to participate, but the percentage of participation does not meet the above requirements, but does not necessarily mean that the above requirements for support are satisfied at the same time. Thus, the Defendant’s failure to pass the part of ○ University’s camp in 2015 at the time of admission to the part of ○ University in 2015 and treated Nonparty 1 and Nonparty 2 as the Plaintiff is significantly deviating from and abusing the discretionary power.

3. Judgment of the Supreme Court

A. The autonomy of a university is guaranteed as prescribed by the Act (Article 31(4) of the Constitution of the Republic of Korea). To the extent that the university does not infringe on the right to receive education for applicants, the university may decide not to pass an examination in accordance with the standards for passing or passing an examination set by itself. Therefore, the university’s determination of the standards for qualifications for admission, selection methods, etc. at the time of selecting applicants or passing an examination in accordance with such standards shall be deemed a discretionary act that can be freely determined by comprehensively taking into account the character, quality, academic background, knowledge, etc. necessary to achieve the educational purpose within the scope of the relevant statutes or school regulations, etc., and it shall not be deemed unlawful if it does not manifestly deviate or abuse the discretionary authority (see Supreme Court Decision 2006Da23817, Jul. 13, 2006).

B. According to the above facts, the certificate of the performance of the Camp Association against the non-party 1 and the non-party 2 is consistent with objective facts, and its contents cannot be deemed to not satisfy the requirements for partial assistance among the ○ University entrance examination. There is no ground to conclude that the instant work guidelines have binding force in selecting the applicants, even though they could be subject to the guidelines for internal business affairs of the Young-gu Association. Therefore, the lower court concluded that the pertinent business performance certificate was a document that was denied for the admission examination and that the failure of the plaintiff was illegal as a deviation and abuse of discretionary power on the selection of the applicants for admission examination based on this determination by misapprehending the autonomy of the university and the legal principles on the interpretation of the requirements for the admission examination prescribed by the defendant. The ground of appeal assigning this error is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)