(영문) 서울행정법원 2016.9.29. 선고 2015구합75077 판결

B. From September 26, 201 to October 7, 201, the Defendant issued an audit of the accounting division of the pertinent university (hereinafter referred to as the “audit”). On February 9, 2012, the Defendant ordered the Plaintiff and the instant university to take measures regarding its status and administrative measures regarding the pertinent cadastral matters until April 10, 2012.

C. On August 26, 2014, the Defendant issued a disposition to reduce the admission quota by 5% for the year 2015 to the Plaintiff on the ground that “the Plaintiff did not take two administrative measures and one financial measure among the matters pointed out according to the instant audit results as follows” (hereinafter “disposition to reduce the admission quota for the year 2015”).

A person shall be appointed.

In January 22, 2015, the Plaintiff filed a lawsuit against the Defendant seeking revocation of the reduction of the admission quota, and rendered a favorable judgment in the first instance court on January 22, 2015 (Seoul Administrative Court 2014Guhap68300), and the appellate court revoked the above judgment on December 9, 2015 and rendered a judgment dismissing the Plaintiff’s claim (Seoul High Court 2015-36753), and this judgment became final and conclusive through the final appeal (Supreme Court 2015Du60952).

On the other hand, the disposition of reducing the admission quota for the year 2015 was suspended from October 6, 2014 to December 9, 2015, which was sentenced by the appellate court's decision on the suspension of execution during the above litigation process.

D. On September 3, 2015, the Defendant issued a disposition to reduce the admission quota for the year 2016 by 5% pursuant to Article 60 of the Higher Education Act and Article 71-2 of the Enforcement Decree of the same Act on the ground that “the Plaintiff did not take two administrative measures and one financial measures according to the instant audit results as follows” to the Plaintiff (hereinafter “instant disposition”).

A person shall be appointed.

[Reasons for Recognition] Facts without dispute, Gap evidence 2, 7, 8 (including each number), Eul evidence 1 and 2, and the purport of the whole pleadings

2. The plaintiff's assertion

For the following reasons, the Plaintiff asserts that the instant disposition should be revoked as it is unlawful.

A. Non-existence of grounds for disposition

1) As to the improper items of designated donation management, Article 8(1) of the “Rules on the Establishment and Operation of Cyber Colleges (Rules on the Establishment and Operation of Cyber Colleges) that a school foundation should transfer at least 80% of income generated from basic property for profit-making purposes to the operating expenses of cyber colleges is limited to decoration regulations, and the Plaintiff’s KRW 100 million deposited to the University on February 28, 2013 shall be deemed to have been transferred to the accounts of school expenses under the pretext of designation in accordance with the legal principles on application for payment of designated appropriation under Article 476(1) of the Civil Act. Therefore,

2) As to improper items of training and welfare of school personnel

A) Although the Plaintiff, who was unable to implement the content of the request for disposition, purchased the training and welfare facilities for school personnel in KRW 4.15 billion, the actual transaction price merely exceeds KRW 2.2 billion, it is impossible to dispose of the purchase price of KRW 4.15 billion, which is the purchase price, and to import the price to the accounts for school expenses, and thus, it is null and void from the beginning as it is impossible to implement the disposition request. Therefore, the Plaintiff’s failure to implement the request for disposition null and void is not a ground for disposition.

B) Since the contents of the request for disposition are owned by the pertinent university as the fundamental property for education and training of the said teachers and welfare facilities, the amount of KRW 2.4 billion equivalent to that of the said university’s school expense account is different. Thus, the Plaintiff’s loss in the accounts of school expense arising from the Plaintiff’s purchase of the training and welfare facilities of the said teachers and staff at a high price is equivalent to KRW 1.8 billion (i.e., purchase price of KRW 4 billion - KRW 2.2 billion). Since the Plaintiff was subject to revenue revenue of KRW 1.8 billion on June 21, 2013, the Plaintiff should be deemed to have completed the implementation of this part.

C) Even if the Plaintiff’s error in calculating the sanction point did not implement this part of this, it constitutes a case where the administrative measure was not implemented. Nevertheless, the Defendant calculated the administrative disposition sanction point by deeming it as a case where the Defendant did not implement financial measures.

(b) the deviation and abuse of discretionary authority;

1) Article 8(a)(a) of the Operational Guidelines for Administrative Sanctions for the Implementation of the Audit Results by Private Universities and Colleges 'in violation of the principle of self-regulation in administration' provides that where a lawsuit is pending inevitably in connection with the audit disposition, the calculation of the administrative sanctions may be reserved until the completion of the lawsuit. The defendant reserved the calculation of the sanctions on the "inappropriate Evaluation of American Enterprise Shares" item in the instant disposition on the ground that the appellate court is pending in the proceeding, the administrative election or practice reservationing the calculation of the sanctions points for the matters pointed out in the pending lawsuit is established, and the defendant shall be deemed bound. Nevertheless, the defendant, in violation of such self-defense, did not withhold the sanctions points for the "inappropriate Management of Designated Donations" item and the "inappropriate Purchase of Welfare Facilities" item in the instant disposition without reservation for the calculation of the sanctions points.

2) Violation of the principle of proportionality

In light of the fact that the Plaintiff’s failure to sell training and welfare facilities for school personnel was not easy to sell due to the aggravation of real estate competition, and accordingly, the Plaintiff rejected an application for recycling of the above facilities to the Defendant as a training institute facility, which the Plaintiff applied for a plan to utilize the above facilities as a training institute facility, but may be faced with the crisis of closed school because the possibility of receiving the reduction of the fixed number of admission becomes final and conclusive, the instant disposition was excessively harsh to the Plaintiff, thereby deviating from and abusing discretionary power.

3. Determination on the legitimacy of the instant disposition

(a) Relevant statutes;

It is as shown in the attached Form.

(b) the existence of the reasons for the measure;

1) As to the improper items of designated donations

A) Facts of recognition

(1) In around 2008, the Plaintiff concluded a sales contract to purchase 6 and 7 floors among the 6 and 7 floors of the Seoul Mapo-gu Seoul Metropolitan Government ground buildings from T3 Entertainment, and paid the purchase price with the school expenses accounting funds.

However, when concluding the above sales contract, the Plaintiff included KRW 500 million in the sales price in consultation with T3 Entertainment, and then returned it under the name of "T3 donations" and used it as corporate operating expenses. The Plaintiff demanded the Plaintiff to transfer the above KRW 500 million used as corporate operating expenses to the school expenses accounts by the auditor of this case.

(2) On February 27, 2013, the Plaintiff deposited KRW 177,712,344 (excluding expenses; hereinafter referred to as “the instant revenue”) out of 177,712,34 won (excluding expenses; hereinafter referred to as “the instant revenue”) in the bank account of the instant university as “T3 donation,” 68,605,680 won, under the name of “the contributions to the private school pension corporation.” The Plaintiff completed internal resolution on the “transfer of expenses for the operation of the university (draft)” with the content that the Plaintiff transfers KRW 100,000 to the private school expense account, and on February 28, 2013, deposited KRW 168,605,680 (=100,000 +68,605,680,680) in the bank account of the instant university.

(3) On August 14, 2014, the Plaintiff transferred KRW 400 million to school expenses accounts for T-3 donations. On August 18, 2014, the Plaintiff reported to the effect that on August 18, 2014, a total of KRW 500 million (= KRW 100 million + KRW 400 million on August 14, 2014) transferred to school expenses accounts, thereby completing the implementation of this part.

[Reasons for Recognition] Facts without dispute, entries in Gap evidence 6 and 12 (including each number), and the purport of the whole pleadings

B) Determination

(1) Relevant legal principles

Article 29 of the Private School Act divides the accounts of school juristic persons into the accounts of school juristic persons belonging to the school and the accounts of juristic persons belonging to the affairs of the school, and donations, tuition fees and other charges which school has received shall be the revenue of school expenses and managed in a separate account.

Meanwhile, Article 5(2) of the Private School Act delegates the standards for facilities, equipment, and property necessary for private schools to the Presidential Decree, and Article 8(1) of the "Rules on the Establishment and Operation of Cyber Colleges" enacted pursuant to such delegation requires school foundations to appropriate the amount equivalent to at least 80/100 of income generated from basic property for profit every year as expenses incurred in the operation of cyber colleges established by them. The purpose of this provision is to ensure the financial soundness of cyber colleges and to ensure the stability and quality of education by preferentially appropriating not less than a certain percentage of income generated from basic property for profit of school foundations to expenses incurred in the operation of cyber colleges.

In full view of the contents and legislative intent of the above provisions, the provision that preferentially cover not less than 80% of the profits generated from basic assets for profit-making purposes in Article 8(1) of the Establishment and Operation Regulations shall be deemed to be a mandatory provision.

(2) In the instant case, on February 28, 2013, the Plaintiff transferred KRW 100,000,000, out of KRW 177,712,344 from the instant proceeds derived from the fundamental property for profit-making purposes, to the accounts of school expenses under the pretext of T three donations, and KRW 68,605,680 from the private school pension corporation’s contributions, as seen earlier.

However, pursuant to Article 8(1) of the Regulations on the Establishment and Operation of Cyber Colleges, 142,169,875 won (i.e., 177,712,34 won x 80%) (i.e., 177,712,344 won x 80%) out of the proceeds of this case should be preferentially appropriated for the expenses necessary for the operation of the University of this case. However, there is no dispute between the parties as to the fact that the contributions to private school of this case fall under the expenses necessary for the operation of the University of this case, but do not fall under the 3th contribution amount. As such, 73,564,195 won (i.e., 142,169,875 won - 68,605,680 won) out of the 100,000,000 won of T3 contribution transfer and the amount of contribution to private school of this case should be appropriated for the necessary expenses of the University of this case.

Ultimately, only KRW 26,435,805 out of KRW 100,00,00 that the Plaintiff transferred to the accounts of school expenses on February 28, 2013 (i.e., KRW 100,000,000 - KRW 73,564,195) may be deemed as having fulfilled the content of the disposition request related to this part. As such, the Plaintiff’s KRW 73,564,195 out of the designated donation KRW 500,000 (i.e., KRW 50,000,000 - KRW 400,000,000 from the transferred funds of February 28, 2013 - KRW 26,435,805 from the transferred funds of February 28, 2013) has not been transferred to the accounts of school expenses.

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

2) As to improper items of training and welfare of school personnel

A) Facts of recognition

(1) On December 29, 2008, the Plaintiff entered into a sales contract with the Plaintiff’s 4.15 billion won (including value-added tax of KRW 150 million) (hereinafter “instant sales contract”) to purchase 4.2-5 billion from E, a partner of D, the president of D, to purchase 4.15 billion (hereinafter “G”). The Plaintiff paid the purchase price with the funds for the accounts of school expenses of the instant university.

The conclusion of the instant sales contract is determined through close consultation with H, which was the president of the University at the time D at the time.

(2) The Secretary General of the University, who received the prior review prior to the conclusion of the instant sales contract, prepared a statement of internal parts stating his opinion, such as “The 1st floor is excluded from the entire building, and any problem, such as consultation with the owner of the 1st floor, may occur even in the course of reconstruction and remodeling after purchase.”

On the other hand, G was constructed as the original commercial building (cafeteria) according to the ‘the creation plan for the bathing beach tourist resorts', so in order to utilize it as school training facilities, it was approved by the Governor of Gangwon-do to modify the development plan for the tourist destination.

(3) On June 30, 2009, after the payment of the price under the instant sales contract was made, the University dispatched a working team to G for the first time to answer the site, and started work for the purpose of change of use. In the process, in order to change the purpose of use in the tourist zone, the change of the relevant region’s creation plan should be prior to the change of the purpose of use in the tourist zone. It was confirmed that the pertinent tourist complex developer and the land owner, must directly proceed to E.

At the time, the school working team prepared a report to the effect that the G building is out of age due to the lack of management after completion, the surrounding buildings are all amusement facilities, and that it is not a good condition to enter university training facilities and it is not easy to change the purpose of use due to conflicts with residents, etc.

(4) Even after the above on-site answer, G’s change of use did not proceed, and even if remodeling is conducted due to the change of purpose of use, there is no space for accommodation in the structure of the building, and there is a situation where only seminars and lecture rooms can be established. Therefore, the utility of local training facilities as local training facilities is very low.

(5) The Defendant discovered that G was neglected in the process of the instant audit and inspection without being utilized as the training and welfare facilities of the teaching staff, and ordered the Plaintiff to dispose of G as at least KRW 4,150,000,000, which is the purchase price, and to take measures to revenue the account of the instant university’s school tuition.

(6) As a result of the market price appraisal of G, the instant sales contract for G was concluded on December 29, 2008, and was assessed as KRW 2.24 billion as of December 29, 2008. On June 21, 2013, the Plaintiff (i.e., the trading price of G and the market price of KRW 4.15 billion - the market price of KRW 2.4 billion - the market price of KRW 2.4 billion) paid revenue for school expenses accounts.

(7) On July 22, 2013, the Defendant notified the Plaintiff that the Plaintiff would be able to utilize G as a training institute facility, and the Plaintiff would be able to use G as a training institute facility. On the other hand, the Defendant permitted the disposal of G, which is an fundamental property for education, as of July 21, 2014.

(8) On November 4, 2013, the Defendant directed the Plaintiff to establish and submit alternative plans in cases where G is not sold. On January 9, 2014, the Defendant urged the Plaintiff to establish the second alternative plan.

(9) On April 22, 2014, according to the Plaintiff’s quarterly report data, the Defendant instructed the sale of G to establish separate measures, such as methods of preserving school expenses, other than sale, and issued a warning that administrative measures may be taken if the state of loss of school expenses continues in the future.

(10) On July 23, 2014, the Plaintiff submitted to the Defendant a written opinion on the grounds for non-disposal of fundamental property and the sale of training facilities. The Plaintiff was unable to find the applicant due to the real estate competition, but it was difficult to find the applicant. However, since the tourism and resort business is anticipated to be activated in the neighboring area and it is possible to sell the goods on a good condition that consumers with considerable financial capacity can only be sold on a long-term basis, the Plaintiff stated the purport of extending the disposal permission period.

(11) On August 4, 2014, the Defendant submitted to the Plaintiff a specific plan to fully preserve the amount of KRW 2.35 billion for which the implementation of the revenue measure was reserved (i.e., the sale price of KRW 4.15 million - KRW 150 million - the amount of the revenue measure for school expenses accounting for the school expenses on June 21, 2013) by August 8, 2014, and instructs the Plaintiff to continue selling activities of G separately from the formulation of the plan, and provided that sanctions such as the reduction of the maximum student number under Article 60 of the Higher Education Act may be imposed if the Plaintiff fails to implement the instructions.

(12) On August 26, 2014, the Defendant issued a disposition to reduce the fixed number of admission in the year 2015 on the ground that the Plaintiff did not take a revenue measure of KRW 2.35 billion in the school expenses account, and on September 3, 2015, issued the instant disposition on the same ground.

(13) On the other hand, with regard to the Plaintiff’s purchase of G, which is only about KRW 2.2 billion in the market price, through the instant sales contract, from Plaintiff’s Dong Jae-in, the Plaintiff’s partner, D and the president of the instant university, in violation of his occupational duties, acquired financial benefits equivalent to KRW 1.8 billion to E, and incurred losses to the Plaintiff, thereby having been convicted of having committed a violation of the Act on the Punishment, etc. of Specific Economic Crimes Aggravated Punishment (Misappropriation).

[Ground of recognition] Facts without dispute, Gap evidence 16-1, 4, 5, 7, Gap evidence 15, Gap evidence 17-1, 2, Eul evidence 1 and 2, and the purport of the whole pleadings

B) Determination

(1) Whether the performance of the disposal request is impossible

Comprehensively taking account of the following circumstances revealed by the facts recognized as above and the purport of the entire pleadings, it is difficult to deem that the content of the request for disposition related to this part is impossible to perform.

① The content of the request for disposition related to this part is that the Plaintiff’s purchase of KRW 4,150,000 from E, the birth partner of the Plaintiff’s president, with the school expenses accounting funds, is neglected without being used as a training and welfare facility for school personnel. Therefore, the Plaintiff’s purchase price of KRW 4,150,000,000, which is the trading price, should be disposed of at least 4,1550,000

(2) However, in light of the developments leading up to the conclusion of the instant sales contract regarding G and the Plaintiff’s personal relationship between D and E, it is not deemed impossible for the Plaintiff to recover the school expenses accounts that the Plaintiff paid in the purchase price by re-backing the purchase price purchased from G as it is, etc.

③ Furthermore, the content of the above disposition is premised on the sale of G. However, in light of the language and text, the Defendant ordered the Plaintiff to take measures for preserving school expenses in other forms if the sale of G does not take place, and recognized that the Plaintiff partially implemented the above disposition request, which was 1.8 billion won in revenue measures for school expenses accounts without the sale of G. While taking the instant disposition, the Plaintiff specified the Plaintiff’s 2.35 billion won in sales price ( = 4.15 billion in sales price - 1.8 billion won in sales price) as the non-performance of the disposition. In light of the above, the Defendant’s genuine intent, rather than the sale of G itself, was intended to recover the financial loss incurred in the accounts of school expenses by taking measures for maintaining the revenue of KRW 4.15 billion in sales price in the accounts of school expenses. Accordingly, even if the Plaintiff’s 2.3 billion in sales is not necessarily required, the Plaintiff’s disposal request should be deemed to have been made in the status of financial loss incurred in the accounts of school expenses.

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

(2) Whether the contents of the disposition request were fulfilled

At present, G is still neglected without being used as a training and welfare facility for teachers and staff, and it is difficult to change the purpose of use to function as a training and welfare facility for teachers and staff, and even if the purpose of use is changed, the utility value as training facility is very low.

According to the above facts, it is reasonable to view that even if the university of this case possesses G as basic property for education, it cannot be said that the amount equivalent to 1.8 billion won equivalent to the market price of G cannot be said to be the same as that of the accounts for school expenses. Therefore, the plaintiff cannot be deemed to have fulfilled all the requirements for disposition related to this part.

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

C) Article 3(c) of the Administrative Sanctions Guidelines for the Implementation of the Audit Results of Private Universities (hereinafter referred to as the “Operational Guidelines”) provides that administrative measures include improvement, correction, notification, etc., and financial measures mean recovery, reimbursement, and preservation.

However, as seen earlier, it is reasonable to view that the content of the disposition request related to this part of the item as requiring the Plaintiff to take a measure of KRW 4.15 million in the accounts of school expenses by selling G, etc., which constitutes a financial measure since it orders the Plaintiff to preserve the amount as above in the accounts of school expenses.

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

C. Whether the discretionary authority is deviates or abused

A) Whether the administration violates the principle of self-regulation

Article 8(a)(a) of the Operational Guidelines of this case may withhold administrative disposition points for the case in question until the completion of the lawsuit where the lawsuit is pending inevitably in connection with the audit disposition.

The above provision provides that the administrative agency's internal rules for administrative affairs established on the basis of the exercise of discretionary power, in light of its form and content, are subject to discretionary rules.

Meanwhile, the so-called "administrative rules or internal guidelines, which are issued by a superior administrative agency to a subordinate administrative agency on the basis of the principles of equality or the principles of statutory interpretation and application, are generally effective only within the administrative organization, and do not have external binding force, and thus, such administrative disposition is not immediately illegal merely because it violates such rules. Provided, That if administrative rules, which are the rules for the exercise of discretionary power, are enforced as set forth therein and administrative practices are carried out, the administrative agency is placed under self-detained in relation to the other party in accordance with the principles of equality or the principles of trust protection, and thus, barring any special circumstance, any disposition violating such rules is an illegal disposition that deviates from or abused its discretionary power (see, e.g., Supreme Court Decision 2009Du7967, Dec. 24, 2009).

However, as seen earlier, the Defendant reserved the calculation of the sanction points on the instant disposition on the grounds that the instant disposition was in progress by the appellate court with respect to the “unfair evaluation of equity in the U.S. enterprise,” but such circumstance alone is difficult to deem that the administrative practice reservationing the assessment of the sanction points on the matters pointed out in the audit in progress, and there is no other evidence to acknowledge the existence of such administrative practice.

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

B) Whether the principle of proportionality is violated

(1) Relevant legal principles

Whether a punitive administrative disposition deviates from or abused by social norms shall be determined by comparing and comparing the degree of infringement on public interest and the disadvantages suffered by an individual due to such disposition, by objectively examining the content of the offense committed as the grounds for the disposition, the public interest purpose to be achieved by the relevant disposition, and all the relevant circumstances (see, e.g., Supreme Court Decision 2005Du11982, Feb. 9, 2006).

(2) In the instant case:

(A) Comprehensively taking into account the following circumstances revealed by the facts acknowledged earlier and the purport of the entire pleadings, even if considering the circumstances alleged by the Plaintiff, it cannot be deemed that the instant disposition was excessively harsh to the Plaintiff compared to the purpose of the public interest to be achieved thereby, and thus, it did not constitute a deviation or abuse of discretion.

① It is most important to secure and maintain the financial soundness of the school to improve the quality of school education and educational environment. If the school finance becomes worse, it will eventually result in poor education at the school and eventually return to the students’ damage.

② However, the Plaintiff did not transfer the designated donation KRW 500 million to the school expense accounts, used it as the corporate operating expenses, purchased G with a lower value than the market price for the purpose of training and welfare facilities of the school expenses by bringing KRW 4.15 million into the school expense accounts, thereby causing financial difficulties in school finance. The Plaintiff did not take measures to preserve more than half of the amount. In light of the scale and amount of the school expense accounting funds leaked out to the outside, it is highly necessary for the public interest to correct it through strong administrative sanctions, such as reduction in the number of personnel.

③ According to the instant operational guidelines, administrative disposition sanctions are calculated from the year following the year in which the period for reporting the performance of audit disposition falls. Administrative measures are calculated as 25 points per case; financial measures are calculated as 3 points per 100 million won (in the case of a thousand won unit), (Paragraph (5) shall be calculated by applying the additional rate of 20% accumulated from the year following the year in which the sanctions are calculated to the non-performance points (Paragraph (7), and where the total amount of such points is 100 points, administrative disposition which reduces 5% of the fixed number of admission (Paragraph (Paragraph (6)).

However, the deadline for the performance report related to the instant audit is April 10, 2012. It is clear that the Plaintiff’s administrative disposition’s imposition of sanctions for the reduction of the fixed number of admission on the ground that it did not comply with the following items: (i) the total of 116.4 points [25 points for designated donations management + 72 points for inappropriate items for the number of teachers and staff training and welfare facilities purchase + 2.4 billion won for 2.4 billion won (= 100% + 2.4 billion won from the total of 1 year elapsed in 2013 + 20% from the total of 1 year in 2013). Thus, it is clear that the Plaintiff’s imposition of sanctions necessary for the reduction of the fixed number of admission was not effective on the ground that the above two items were not implemented by the court’s decision on the suspension of execution from 2015 until 2014. 16. 2014).

As such, the instant disposition was conducted in accordance with the disposition standards set by the operating guidelines of the instant case, and the said disposition standards do not in itself conform with the Constitution or laws, or does not seem to have considerablely unfair to deem the instant disposition in accordance with the said disposition standards.

(B) Therefore, the Plaintiff’s assertion on this part is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.