[1] The limitation of discretion in the preparation of examination as an administrative act

[2] Whether an appeal may be filed against the designation of a land transaction permission zone under the National Land Planning and Utilization Act (affirmative)

[1] In the setting of questions as an administrative act, the preparing member has discretion in a sense that he/she can freely determine what kind of matter is within the scope of the statutory provisions, and what terms and forms of questions and answers can be formed within the scope of the statutory provisions. On the other hand, the discretion has limitations that should be exercised properly in the contents and composition of the setting so that he/she can evaluate the ability of the examinees in accordance with the purpose of the examination. Thus, when the exercise of such discretion exceeds the limits, the setting of questions shall be illegal.

[2] An administrative disposition which is the object of an appeal litigation refers to an act that is directly related to the rights and obligations of the people, such as ordering the creation of rights or the burden of obligations under Acts and subordinate statutes or causing other legal effects with respect to a specific matter, and according to the provisions of the National Land Planning and Utilization Act, if designated as an area subject to permission for a land transaction contract under the same Act, parties who intend to enter into a transaction contract for the purpose of transfer of ownership, etc. with respect to land located within an area subject to permission shall jointly obtain permission from an administrative agency, etc., jointly obtain permission from the administrative agency. No land transaction contract entered into without permission shall take effect, and a person who has obtained permission for a land transaction contract bears the duty to use the land for the permitted purpose for a period prescribed by the Presidential Decree within the extent of five years, and the designation of an area subject to permission for a land transaction contract, such as the imposition of a charge for compelling execution, is a disposition by an administrative

[1] Article 27 of the Administrative Litigation Act / [2] Article 117 of the National Land Planning and Utilization Act, Article 2 (1) 1 of the Administrative Litigation Act, Article 12 of the Administrative Litigation Act

Plaintiff 1 and 6 others (Law Firm Young-jin, Attorneys Kang Yong-ki et al., Counsel for the plaintiff-appellant)

Human Resources Development Service of Korea (Law Firm Doll, Attorneys O Jae-joon et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Nu12437 decided May 18, 2006

The part of the lower judgment against Plaintiffs 1, 2, 3, 5, and 6 is reversed, and that part of the case is remanded to the Seoul High Court. The appeals by Plaintiffs 4 and 7 are all dismissed.

The grounds of appeal are examined.

1. In the setting of questions as an administrative act, the questions shall be set within the scope of the statutory provisions, and the questions and answers in a sense that it can be freely set up within the scope of the statutory provisions. On the other hand, the discretionary power has limitations that should be exercised properly in the contents and composition of the questions so as to assess the ability of the examinees in accordance with the purpose of the examination. Thus, if the exercise of the discretionary power exceeds that limit, the setting of questions shall be illegal.

2. On the issue of No. 81 of Real Estate Law No. 81

A. Fact-finding and judgment of the court below

(1) The facts duly established by the court below are as follows.

In the second test of the 14th qualifying examination for licensed real estate agents (hereinafter “the instant test”), which was implemented on September 21, 2003, the following (hereinafter “instant issue”), the Defendant selected the answer as follows (hereinafter “instant question”); and (4) Plaintiff 1, 2, 3, 5, and 6 selected both answers.

81. Table 81. In the main text of the National Land Planning and Utilization Act (hereinafter referred to as the “National Land Planning and Utilization Act”) among the explanation on an objection, administrative appeal, or administrative litigation against various acts under the National Land Planning and Utilization Act (hereinafter referred to as the “Act”), the designation of an area subject to permission for land transaction may not be subject to an administrative litigation.

(2) The judgment of the court below

The court below rejected the plaintiffs' assertion that: (a) since the answer does not cause any special interpretation problem, the question of this case is the correct answer; and (b) the designation itself of the land transaction permission area is not directly related to the specific rights, obligations, or legal interests of the people; (c) so long as there is no defect in the formulation process or procedure of such plan, it is difficult to file an administrative litigation in principle against such plan itself; and (d) the defendant can bring an administrative litigation exceptionally by stating that the designation of the land transaction permission area in the answer port is not the principle that it is impossible to bring an administrative litigation against the designation of the land transaction permission area, and as an exceptional case, the defendant used the expression to the extent necessary to prevent the confusion of the examinee in the objective test, and thus, the answer port does not cause any special interpretation problem; and (d) the average examinee does not cause any problem to the extent that he makes the choice of the answer; and therefore, (d) the answer to this case is only 1.

B. Judgment of the Supreme Court

In accordance with the legal principles as seen earlier, there is no dispute over the issue of this case (4) other than the answer of this case, and (1) other than the answer of this case can be the correct answer of this case.

Administrative disposition, which is the object of an appeal litigation, refers to an act that is directly related to the rights and obligations of the people, such as ordering the creation of rights or the burden of obligations under Acts and subordinate statutes or causing other legal effects with respect to a specific matter. According to the National Land Planning and Utilization Act (hereinafter “Act”), if designated as an area subject to permission for a land transaction contract pursuant to the Act, parties who intend to enter into a contract for the purpose of transfer of ownership with respect to a land located within an area subject to permission shall jointly obtain permission from an administrative agency. No land transaction contract entered into without permission shall take effect, and a person who has obtained permission for a land transaction contract bears the duty to use the land for the permitted purpose for a period prescribed by Presidential Decree not exceeding five years. If a person fails to perform a land use obligation pursuant to the Act, the designation of an area subject to permission for a land transaction contract, such as imposing a charge for compelling execution, shall have the effect of regulating the rights and legal interests of an individual, and therefore, an appeal litigation may be

Therefore, in principle, it is clear that the designation of the land transaction permission zone is not capable of administrative litigation, and therefore, the answer of this case is ①, ④, and the answer of this case. Thus, if the average score of the second examination is calculated by giving 2.5 additional points to the above plaintiffs selected as the answer of this case as the answer of this case, the above plaintiffs obtained 60 points which are the passing point of each passing point, so the above plaintiffs' failure disposition of this case against the above plaintiffs is unlawful.

Nevertheless, the court below held that the failure disposition against the above plaintiffs was legitimate on the premise that the response port was the correct response of the problem of this case. The court below erred by misapprehending the legal principles on the preparation of objective examination questions and the choice of correct response, which affected the conclusion of the judgment. The grounds of appeal pointing this out are with merit.

3. As to the remaining issues except for the issue No. 81 of Real Estate Law No. 81

According to the reasoning of the judgment of the court below and the judgment of the court of first instance as cited by the court below, the court below, after compiling the adopted evidence, found facts as stated in the judgment, rejected the plaintiff 4's assertion on the issue Nos. 60 of the Civil Act and the Special Act on Civil Procedure (Atype criteria; hereinafter the same shall apply), plaintiff 1, 2, 3, and 7's assertion on the issue Nos. 91 and 104 of the Real Estate Construction Act, plaintiff 1, 2, 6, and 7's assertion on the issue Nos. 1, 6, and 13 of the Real Estate Brokerage Act and the Real Estate Brokerage Act, and the Real Estate Brokerage Act and the Mediation Practice.

Examining the relevant evidence in light of the records and relevant statutes, the court below is just in rejecting the above plaintiffs' assertion that the above plaintiffs' answers as to the issues of the first examination, No. 60 of the Civil Code and the Special Civil Special Code, No. 91, No. 104 of the Real Estate Law, No. 13, and No. 13, and No. 36 of the Real Estate Brokerage Act and the Real Estate Brokerage Practice, should be recognized as a correct answer, and there is no error in the misapprehension of legal principles as to the interpretation standards of objective testing questions, general principles, and relevant statutes, as otherwise alleged in the ground of appeal.

4. Conclusion

Therefore, the part of the judgment of the court below regarding plaintiffs 1, 2, 3, 5, and 6 is reversed, and that part of the case is remanded to the court below for a new trial and determination. All appeals by plaintiffs 4 and 7 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)