(a) Whether an expulsion from school against a national teachers' college is an administrative disposition (affirmative);

B. Whether a disciplinary action against a student is subject to judicial review on the ground that it is an educational discretion (negative)

(c) The case holding that it is unlawful for the dean to take an expulsion from school by changing the contents of a resolution ex officio without going through a deliberation and resolution by the faculty council as provided in school regulations, on the ground that it is unlawful for the dean to take an expulsion from school without going through a new deliberation by the dean on a resolution on discipline against students of the National Teachers' College;

A. An administrative disposition subject to an administrative litigation refers to the exercise or refusal of public authority as an enforcement of law with respect to a specific fact by an administrative agency, and other equivalent administrative actions. An expulsion from school against a national teachers’ college is an administrative disposition since the principal of a school who takes charge of school affairs and instructs students at the same university, which is an educational institution established and managed by the State, expresses his/her intention on the national educational administration of a country which unilaterally deprives of his/her status as a student by exercising a disciplinary right, which is one of the State’s public authority, for the realization of educational purpose and the maintenance of order in school.

B. Even though the exercise of the right to discipline or the determination of disciplinary action against the student is at the educational discretion of the person having authority over disciplinary action, if the court judged that the disciplinary action is illegal as a result of a trial, it may be cancelled, and the disciplinary action shall not be naturally excluded from the subject of judicial review on the ground that it is an educational discretion.

C. In a case where the principal intends to take a disciplinary measure against a student under the school regulations of the national teachers’ college, if the principal requires him/her to first undergo a deliberation and resolution by the faculty council, if the principal requests a reexamination of a disciplinary measure against a student, and the principal requests a new faculty council to delegate his/her authority to make an ex officio adjustment of the disciplinary measure against the student, and then some of the professors request a new faculty council to bring about an ex officio resolution by the said faculty council under his/her responsibility without going through voting, if the above expulsion from school was made by changing the contents of the disciplinary measure by ex officio under his/her responsibility, the above expulsion from school is illegal since it is merely an independent expulsion from school without going through

(b)Article 76(1) of the Education Act, Article 77(a) of the Enforcement Decree of the same Act, Article 2(1)(b) of the Administrative Litigation Act, Article 27 of the Administrative Litigation Act;

Supreme Court Decision 91Nu2151 delivered on November 28, 1991

Plaintiff

Attorney Kim Chang-soo, Counsel for the defendant-appellant

Seoul High Court Decision 89Gu10168 delivered on January 18, 1991

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the fourth ground for appeal

An administrative disposition subject to an administrative litigation refers to the exercise or refusal of public authority as a law enforcement with respect to a specific fact conducted by an administrative agency, and other corresponding administrative actions. The expulsion from school of this case refers to the expulsion from school of this case, which is one of the educational institutions established and managed by the State, and whose school principal is in the position of controlling and guiding students, refers to the specific law enforcement with respect to the plaintiff, who is the student of the same university, who violates the school regulations, and unilaterally deprives the status of the plaintiff as a student of the state's authority. Therefore, it is obvious that the court below is an administrative disposition as mentioned above, and therefore it is reasonable that the court below deemed the expulsion from school of this case as an administrative disposition, and it is not unlawful in the misapprehension of legal principles as to administrative disposition such as the theory of lawsuit, or in the incomplete trial.

2. As to the third ground for appeal

Even if the exercise of the right to discipline against a student or the determination of disciplinary action is assigned to the educational discretion of the person having the authority to take the disciplinary action, if the court judged that the disciplinary action is illegal as a result of the deliberation of the court, and it shall not be naturally excluded from the subject of judicial review on the ground that the disciplinary action is an educational discretion. Therefore, it is proper that the court below deliberated and judged the case of this case where the legitimacy of the expulsion from school against the plaintiff is disputed, and it is not erroneous in the misapprehension of legal principles as to the limit of judicial review such as the theory of lawsuit.

3. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below acknowledged that the professor's association of Seoul teachers took part in an excessive demonstration and farming inside and outside the school, and the defendant took part in the disciplinary action against some of the students other than the plaintiff among the students subject to disciplinary action requested by the defendant, such as expulsion from school, and the defendant requested a new trial on July 1, 1989 on the ground that the above disciplinary action was insufficient, and the defendant requested a new trial on July 1, 1989 again held on the ground that the above disciplinary action was insufficient, and the defendant requested a new trial on the professor's meeting to delegate his authority to mediate the above disciplinary resolution ex officio, but the defendant requested a new trial on the part of the professor's meeting without going through the defendant's responsibility, and declared that the above disciplinary action should be adjusted ex officio under the defendant's responsibility, and the above disciplinary action against the plaintiff was modified after the professor's meeting was completed, and determined that the expulsion disposition was unlawful by the defendant's ex officio without going through an "examination of the professor's meeting" under Article 48 of the above university regulations.

In reviewing records, the above fact-finding by the court below is just and acceptable, and there is no illegality of misconception of facts such as theory of lawsuit.

In addition, according to Article 48 (1) of the school regulations of the above university, the principal of the school may be subject to disciplinary action following a deliberation by the faculty council when a student has any of the grounds for disciplinary action specified in the above university. Paragraph (2) is classified into reprimand, probation, abandonment, inorganic term, expulsion from school. According to Article 53 (4) of the school regulations, the faculty council has deliberated and resolved matters concerning the guidance and punishment of the student. Thus, when the principal of the school intends to take disciplinary action, such as expulsion from school, he/she must first undergo a deliberation and resolution by the faculty council. According to the above facts, the expulsion from school in this case cannot be deemed unlawful since it is merely that the defendant conducted his/her own act without undergoing a deliberation and resolution by the faculty council, and therefore, the judgment of the court below with the same purport is justified.

4. Therefore, as long as the expulsion from school cannot be avoided due to the procedural defect, the appeal by the defendant is without merit, and the appeal by the defendant is dismissed, and the costs of appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices who reviewed the appeal.

Justices Kim Sang-won (Presiding Justice)