(영문) 부산지방법원 2015.9.18.선고 2015구합20566 판결

On January 2, 2015, the Defendant revoked the disposition to revoke the authorization for change of the name of a school against the Plaintiff (the Plaintiff primarily sought the revocation of the part concerning Brazilel International Arts and Middle School among the above dispositions, and the revocation of the above disposition, if it is not acknowledged that the above disposition is differentiated. However, the above main and conjunctive claims merely asserted that the scope of the claim is different from the scope of the claim sought revocation, and they are judged as one claim by deeming that the main and conjunctive claims are absorption.)

Reasons

1. Details of the disposition;

A. On December 11, 2006, the Plaintiff applied for the change of the name of the school that changed the name of the 'Bniel Arts Middle School' under the Plaintiff’s corporation to the 'Bniel International Art Middle School (hereinafter referred to as the 'school of this case’). On February 8, 2007, the Plaintiff obtained the authorization for change of the name of the school from the Defendant.

B. The Defendant conducted a special audit of the instant school, and found that the Plaintiff violated the purpose of approving the change of the name of the school, which is to train international artists, by selecting sexual excellent persons in violation of relevant Acts and subordinate statutes, such as the Elementary and Secondary Education Act, and operating curricula in improper manner. On June 20, 2014, the Defendant withdrawn the authorization of change of the name of the instant school on January 2, 2015 (hereinafter referred to as the “instant disposition”).

1. A violation of the purpose of approving the change of school name by respecting the global arts education of the first school (corporation) which has violated the purpose of approving the change of school name by respecting the purpose of nurturing global arts and international art talents, but in the case of a school (corporation), a violation of the purpose of approving the change of school name by selecting sexual excellent persons differently from the aforementioned purpose of approving the change of school name;

From 2011 to 2012, it is more than 374 hours in the base number of new students of the three-year curriculum (374 hours in the language, 340 hours in the English). 36% in the English language, which is not an art department, is organized and operated in the form of ‘international department'.- Violation of the entrance screening for new students of 2012 to 2014 also improper 4. In the case of the 'international school name' and the 'international school department' education curriculum', it is necessary to select students who are in line with the purpose of the establishment of the art department as if the 'international school name' was changed and the 'international school name' did not change the name of the 'international school name' and the 'international school name' and the 'international school name' are no longer likely to interfere with the purpose of the 'international school name' and the 'international school non-permanent change of the name of the 'international school'.

As it is judged that there is a need for significant public interest to correct confusion of educational consumers, parents' civil petitions, conflicts in school, violations of relevant statutes, etc., it is inevitable to withdraw from the school name because there is no fundamental improvement intent for the operation of international school curriculum in the situation where the school name is not withdrawn, such as accepting the corrective order of the Office of Education to correct the illegality of the school (corporation) from the school (corporation) and repeat the nonperformance, etc.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 11, and the purport of the whole pleadings

A. The plaintiff's assertion

1) According to Article 63 of the Elementary and Secondary Education Act and Article 76 of the Enforcement Decree of the same Act, where a school violates education-related Acts and subordinate statutes or orders or school regulations thereunder, the competent authorities may issue an order for correction or modification. If a person fails to comply with such order, the competent authorities may take measures such as cancellation or suspension of the violation of the order, reduction or closure of the fixed number of students, reduction or closure of classes or departments, or suspension of student enrollment. Thus, the instant disposition that withdraws the authorization for modification of the name of the school is unlawful as there is no ground for no previous order for correction. Moreover

There is no fact that the curriculum and the recruitment process of new students have been corrected, and there is no fact that the curriculum is organized, operated, or new students are recruited.

2) In the process of a special audit as the opportunity for the disposition of the instant case, the Defendant provided the school guidance to the instant school on October 14, 2013. In this case, the Defendant notified the principal of the school and requested the documents, etc. after obtaining the permission, the Plaintiff did not have received any prior notification from the Defendant, and the said special audit violates the procedure, such as conducting the school guidance by the head of other middle school curriculum who is not qualified for the school guidance. Thus, the instant disposition is unlawful and unfair in the course of the procedure.

3) Even if there are some errors in the Plaintiff’s operation of the instant school, the withdrawal of the modification authorization of the name of the school is contrary to the principle of proportionality, even though it can resolve the problem by directly collecting wrong parts, etc.

(b) Fact of recognition;

1) After the modification of the name of the school, the matters of the instant school received a warning or corrective order (hereinafter referred to as the “Corrective Order, etc.”) from the Defendant are as listed in the following table.

A person shall be appointed.

2) The following are confirmed as a result of the Defendant’s special audit of the instant school.

① In organizing and operating the three-year curriculum for new students of the year 201, the instant school operated 510 hours of study, and operated 36% more than the base 374 hours, and operated 442 hours of English and operated 30% more than 374 hours than the base 374 hours at the base date. Although the instant school’s warning was issued on December 4, 2013, it operated 510 hours of education and 442 hours of English without corrective measures in organizing and operating the three-year curriculum for new students of the year 2012.

② When conducting admission screening for new students of the year 2012, the school of this case: (a) distributed the interview-type literature navigation (6.4 points) and personality (3.6 points) to the applicant at the time of the interview about 20 minutes prior to the interview, and had the applicant prepare for answers, and (b) allowed the applicant to make an oral statement of the process explanation and answer in front of the interview; (c) assigned the maximum of 6.4 points to each 1.6 points; and (d) the personal score was treated as a full score (3.6 points) by all archors.

③ At the time of the interview of new students in 2013, the school of this case had the applicant prepare the answer about 20 minutes of the interview time, including five-minutes of the interview time, and then had the interview officer make an oral statement about explanation of the problem process in front of the interview, and assigned the maximum seven points to 1.4 points per gram, and all screenings selected new students as an alternative written type with interview points reflecting the interview points according to the gate navigation decision ability of the arche, such as making out a full score (three points), etc.

④ The instant school also selected 25 students expected to be transferred to the school in 2012, 25 students expected to be transferred to the school in 2013, and 14 students expected to be transferred to the school in 2014, the evaluation of the art performance was not conducted, and only conducted the evaluation of academic adaptation ability.

⑤ At the time of the selection of the students expected to be transferred in the year 2012, the instant school, without deliberation by the screening committee for transfer and special admission, the approval of the principal of the school, and the publication website, visited the waiting applicants on the pocket book without screening procedures, and selected five times each time, and selected students expected to be transferred in the year 2013. On February 28, 2014, the instant school selected students expected to be transferred without being posted on the website of the head of the school’s approval and public announcement. During the process of selecting two students of March 3, 2014, the number of credits assessed in the ability to adapt to A (in this case, the admission of the instant school of March 3, 2014) was permitted to be transferred to a student subject to non-permission

⑤ The instant school also reflected the items of gifted education center, gifted class, curriculum activity, etc. in the field of new students in 2012 through 2014 in the evaluation standards. From the examination of new students in 2012, the schools were selected from 32 to 38.4 points in the document screening (40%), from 45 to 47 points in the practical skill screening (50%) from 2.8 points in the interview screening (10%) from 34.4 points in the document screening (40%) from 38.8, from 2013 to 38.8, from 45.5 to 47 points in the practical skill screening (50%) from 10, from 10, from 2014 to 30% of the practical skill screening (10%) from 40% of the document screening type, and from 30% of the document screening type (1 to 48% of the document screening type) from 2014 to 30% of the document screening type (14 to 40% of the document screening type).38.48.

[Ground of recognition] Evidence No. 3, Evidence No. 9-1 and No. 3, and the purport of the whole pleading is to determine.

1) Determination on this safety defense

The defendant asserts that the lawsuit of this case is unlawful since the plaintiff did not go through a legitimate resolution of the board of directors in filing the lawsuit of this case. However, in full view of the purport of the whole pleadings in the statement No. 29, the defendant held a provisional director meeting on February 5, 2015, which was prior to the filing of the lawsuit of this case, deliberated on the agenda of the lawsuit of this case by holding a provisional director meeting on February 5, 2015 and decided with the consent of all the present

2) Determination as to the existence of the grounds for the disposition and whether the grounds for the disposition are needed

Even if there was no particular defect at the time of the disposition, and there is no separate legal ground for the withdrawal of the disposition after the disposition, the disposition agency which rendered an administrative act needs to continue to maintain the original disposition.If there is no change of circumstances, or the necessity for the important public interest arises, it may withdraw it by a separate administrative act which makes it invalid (see, e.g., Supreme Court Decision 2003Du7606, Jul. 22, 2004).

Based on the above legal principles, it is difficult to determine whether there is a need for significant public interest to continue to maintain the disposition for modification of the name of school which is the original disposition in this case. First of all, it is difficult to understand whether the school in this case corrected all of the above-mentioned violations in the admission process and curriculum for new students in 2015 as of the closing date of the argument in this case. However, the following circumstances can be acknowledged by considering the whole purport of the argument in the above-mentioned facts and evidence No. 10, i.e.,, the Plaintiff recruited new students by repeatedly violating the recruitment outline in order to select excellent students, rather than to foster talented students who are the object of the establishment of the first school after changing the name of the school. Accordingly, the students and parents of the school in this case misleads students and parents of the name of the international school for the purpose of the excellent students, which actually caused confusion to the students and parents, and it is not necessary to correct it due to the lack of necessary correction of the number of students in the art department in this case.

Therefore, this part of the plaintiff's assertion is without merit.

3) Determination on the assertion of procedural violation

School inspections based on Article 7 of the Elementary and Secondary Education Act are administrative actions aimed at operating curricula and providing guidance and recommendation on teaching and learning methods to schools under the jurisdiction of the Superintendent of an Office of Education, which do not directly bring legal effects to him/her. It is insufficient to recognize that there is a violation of procedures for the school inspections conducted on October 14, 2013 by Defendant 25, and there is no other evidence to acknowledge it. Furthermore, even if there is a violation of procedures as alleged by the Plaintiff in the scholarship guidance, it cannot be deemed that the disposition of this case is unlawful. Thus, this part of the Plaintiff’s assertion is without merit.

4) Determination on the assertion of violation of the principle of proportionality

In light of the following circumstances revealed by the above facts and the evidence revealed as follows, i.e., the plaintiff continuously violated the recruitment outline of new students in order to select the outstanding students of learning achievement, and the defendant repeatedly issued a corrective order. ② In the event of failure to comply with the corrective order, there is a disposition of reduction of the fixed number of students, abolition of the department and suspension of student enrollment, but the disposition of abolition of the department or suspension of student enrollment is a measure that makes it impossible to operate the school of this case. The reduction of the fixed number of students is too heavy and it is difficult to actually take into account that the number of classes per school of this case is three, and ③ The disposition of this case withdrawing the change of the name of the school of this case is allowed to use the name of the school before the change, which does not affect the financial situation of the school of this case and the fixed number of students, and thus, it seems that the school of this case does not affect the operation itself, and thus, it seems that the school of this case can prevent any mistake that the school of this case is an international middle school of education order.

3. Conclusion

Thus, the plaintiff's claim is dismissed as there is no ground.