(영문) 광주고등법원 2019.8.14.선고 2018누6033 판결

3. The Defendant’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s participation in the total litigation cost, and the remainder, are borne by the Defendant.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

가. 피고는 2017. 10. 11. 29개 전공분야에 대한 전임교원을 공개채용하기 위하여 '제59회 △△대학교 교수 초빙 공고' 를 하였고, 원고와 피고보조참가인(이하 '참가인' 이 라 한다) 등은 그 중 예술대학 국악학과 ●●● ■■ 분야에 응모하였다.

나. 피고는 2017. 11.경부터 12.경까지 원고와 참가인 등 국악학과 ●●● ■■ 분야 응모자들을 대상으로 기초심사 , 전공 1, 2단계심사( 이하 '당초 전공심사'라 한다 )를 진 행하였고, 원고는 위 심사에서 1위로 통과하여 면접심사자로 선정되었다.

C. However, on January 3, 2018, the day before the interview with the Plaintiff, the Defendant notified the Plaintiff that the interview would be postponed due to unfair time in the open recruitment process, and thereafter, on January 10, 2018, the Defendant suspended the scheduled interview procedure on the ground that “the objection related to fairness was raised during the open recruitment process to the original △△ University after deliberation by the Public Bonds Process Management Committee (hereinafter “Fair Commission”).” (hereinafter “instant suspension of interview”), and notified the Plaintiff that he decided to re-examine from the major examination.

라. 그 후 피고는 위 ●●● ■■ 분야 전공 1, 2단계에 대한 재심사(이하 '전공재심 사'라 한다)를 실시하여 2018. 2. 2. 참가인을 합격자(면접심사자)로 확정하였다(이하 ' 이 사건 합격자확정 처분' 이라 한다. 이하 이 사건 면접중단 처분과 이 사건 합격자확 정 처분을 통칭할 때는 ' 이 사건 처분들' 이라 한다).

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, 9, 12 evidence, Eul evidence 1 to 17 (including paper numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The plaintiff's assertion

A. The instant disposition suspending the interview was unlawful for the following reasons.

1) substantive defect

A) The instant disposition of suspending an interview was made based on the Intervenor’s filing of objection. The said objection constitutes an unlawful objection, such as violation of Article 7(d)3 of the Guidelines for General Disclosure and Employment of △ University (No. 4; hereinafter “instant Guidelines”), and thus, the instant disposition of suspending an interview was also unlawful.

B) The Fair Trade Commission determined that the initial review was conducted unfairly. This case’s review was conducted. Despite the absence of the authority or ability to evaluate the contents of the review, the Fair Trade Commission determined as above based on the evaluation of the contents of the initial review, which violates Article 7(d) of the Guidelines, and the initial review was conducted fairly. In light of the fact that the initial review was conducted fairly, the said determination by the Fair Trade Commission was unfair. Ultimately, the instant review was based on the foregoing unfair determination.

다 ) 참가인은 이 법원에서 "원고가 당초 전공심사 과정에서 제출한 '●●● ■■전집 Ⅲ 민요'는 연구실적물 인정기준에 미달한다는 점" 을 이 사건 면접중단처분의 사유로 주장한다. 그런데 참가인이 주장한 위 사유는 피고가 제시한 당초 처분사유와 기초적 사실관계가 다르므로, 이 사건 면접중단처분의 사유로 추가할 수 없다.

2) procedural defect.

According to the instant guidelines, the instant Fair Trade Committee may not proceed with the process of fair investigation and deliberation with respect to open recruitment, unless there is an application or a request for mediation from the Committee on Management of Public Bonds of △△ University. The Defendant asserted that the instant process committee conducted an investigation and deliberation on the fairness of the initial specialized examination upon the application for mediation by the Committee on Management of Public Bonds of the Arts University and the Public Bonds of the Arts University, and then rendered the instant disposition of suspending the interview. However, the said Committee on Management of Public Bonds of the Arts University did not file an application for mediation of the initial major examination with the Commission on the instant process, and thus, there is procedural defect in the instant

B. The determination of successful applicants of this case is unlawful on the following grounds.

1) Since the Intervenor’s objection to the initial major review and the instant unfair determination by the Fair Trade Commission are unlawful or unfair, the decision to suspend and review the interview in this case based on such objection and unfair determination is unlawful, and accordingly, the decision to determine the successful bidder in this case based on the premise that the aforementioned disposition and review decision are lawful is also unlawful.

2) In light of the fact that some of the examiners of the major reexamination are related to a specific applicant, and that the intervenor's spouse slanders the plaintiff during the 2nd stage major review process, among the major review, the intervenor's spouse during the 2nd stage major review process, and one of the examiners did not take any particular measure even though he made a statement to the effect that he slanders the plaintiff while referring to the intervenor, and he made a statement to the intervenor, and that the defendant, including the public committee of this case, applied different standards, such as determining that the grading of the specific examiner is unfair for each of the applicants, but it is unfair to conduct the major reexamination, and thus, the decision to determine the successful bidder in this case is unlawful.

3. Determination as to the suspension of interview in this case

A. Whether the intervenor's ground for disposition is legitimate

1) In an appeal seeking the revocation of an administrative disposition, from the perspective of the substantive rule of law and the protection of trust to the people who are the other party to the administrative disposition, the agency can add or change other reasons only to the extent that the original reason and basic factual relations are recognized to be identical to those of the original disposition, and it is not allowed to assert a separate fact that is not recognized to be identical with the basic factual relations. The existence of the basic factual relations here is determined based on whether the disposable factual relations, which is the basis of the disposition, are identical in the basic point of view by citing the specific facts before the legal evaluation of the grounds (see, e.g., Supreme Court Decisions 9Du6392, Mar. 23, 2001; 200Du8684, Sept. 28, 201). In addition, the additional or modified grounds are not specified at the time of the initial disposition, and have existed at the time of the disposition, and have also been known to the original party, and it cannot be deemed identical with the grounds for disposition (see, e.g., Supreme Court Decision 98Du194.

2 ) 살피건대, 피고가 2018. 1. 10.경 원고에게 이 사건 면접중단처분을 통지하면서 그 사유로 '공개채용 과정에서 공정성 관련 이의가 제기된 점' 을 제시한 사실은 앞서 본 바와 같고, 참가인이 이 법원에 2019. 4. 1.자 및 2019. 6. 10.자 준비서면 등을 제 출하여 "원고가 당초 전공심사 과정에서 제출한 '●●● ■■ 민요'는 이 사건 지침 에서 정하는 연구실적물 인정기준에 미달한다" 는 취지로 주장하면서 이 사건 면접중단 처분의 사유를 추가하여 주장하고 있는 것은 기록상 명백하다.

However, in light of the following circumstances, in light of the evidence mentioned above and the witness testimony of the first instance court, and the overall purport of the pleading at △△△△△△, the grounds for disposition presented by the Defendant and the grounds for a new additional assertion by the Intervenor in this court cannot be deemed the same as the basic facts, and thus, it is not permissible to add the grounds for an additional disposition as the grounds for the suspension of interview in this case

가) 이 사건 공정위원회의 2018. 1. 4.자 회의록( 을 제11호증), '●●● ■■' 분야 재 심사 실시에 대한 내부결재서( 을 제12호증) 의 각 기재, 제1심 증인 이△△의 증언에 변 론 전체의 취지를 비추어 보면, 피고가 이 사건 면접중단 처분서에 기재한 '공개채용 과정에서 공정성 관련 이의가 제기되었다' 는 사유는, 실질적으로 '당초 전공심사에 참 여한 심사위원들 중 일부가 배점을 편향적으로 한 것' 을 의미하는 것으로 보인다. 그런 데 '심사위원들 중 일부가 배점을 편향적으로 한 것 '과 '원고가 제출한 연구실적물이 이 사건 전형지침에서 정한 기준에 미달한다는 것' 은 구체적인 사실관계가 동일하다고 볼 수 없고, 서로 증명하여야 할 내용도 다른 것으로 보인다.

B) Even if the Defendant’s initial reasons for the disposition were to be considered as having raised an objection to fairness in the process of disclosure and employment, it does not appear that it was difficult to view that the facts were identical to the facts, and that the Plaintiff’s results did not reach the criteria for recognition as set forth in the instant guidelines, and that the Plaintiff’s annual results presented by the Plaintiff fall short of the criteria for recognition, solely on the fact that it was difficult to view that the facts were identical to the facts, and that the Plaintiff’s objection to fairness in the process of disclosure and employment, was raised. Accordingly, even if it is determined in accordance with the language and text of the above written disposition, it is difficult to view that the grounds for the initial disposition and the social facts, which form the basis for the grounds for additional assertion by the Intervenor, are identical.

다 ) 참가인도 "피고는, 원고가 제출한 대표 연구실적물인 '●●● ■■전집 민요'가 전형지침의 인정기준에 미달된 사실을 뒤늦게 발견하고, 이러한 실수를 덮기 위하여 심사위원들이 한 배점의 편향성을 이유로 이 사건 면접중단처분을 하였다"라고 주장하 여(2019. 4. 1.자 준비서면 3쪽 등 참조), 위 두 처분사유가 별개의 구체적 사실에 기초 한다는 점을 인정하고 있는 것으로 보인다.

B. Whether an intervenor’s objection to the initial major review is lawful

In this case, it is true that the intervenor's objection concerning the initial major review is doubtful in light of the details of the written objection and its evidentiary materials, etc., or considering the following circumstances, considering the written evidence No. 14, the statement of evidence No. 14, and the testimony of the first instance witness Kim Bright, and the purport of the entire pleadings, it is difficult to deem the above objection to be unlawful. Thus, the first plaintiff's objection on the opposite premise cannot be accepted.

1) The instant guidelines merely stipulate that “the applicant may file an objection in writing against the procedure and result of the specialized examination” (Article 8(a)), and do not stipulate any special provision regarding the procedure, content, and requirements for filing an objection. However, an intervenor filed an objection in the form of submitting a document stating that he/she would raise an objection against the result of the initial specialized examination to the Defendant on December 28, 2017 and January 4, 2018, and thus, an objection is deemed lawful pursuant to Article 8(a) of the instant guidelines.

2) In the written objection submitted on January 4, 2018 by the Intervenor, Part 1 among the performance materials submitted by the Plaintiff is DVD containing the studio video, and the rest of Part 1 is the fact that the Plaintiff is the studio book. The above information appears to be strictly prohibited from being leaked to the outside including other applicants, and it is also true that it is difficult for the Intervenor to easily understand the circumstances in which the Intervenor became aware of the information. However, apart from the fact that the Intervenor may be held liable for civil and criminal liability due to the divulgence of the above information, it cannot be said that the Intervenor’s objection is unlawful without any grounds under statutes and guidelines on the sole ground that there is a somewhat doubtful information on the source and circumstances.

3) Considering the fact that the Intervenor’s written objection submitted on December 28, 2017 does not contain any information prohibited from leakage as above, and the content of the written objection submitted on January 4, 2018, including examining whether the Intervenor’s objection is reasonable upon receipt of the written objection submitted on December 28, 2017, by examining whether the written objection was filed on January 3, 2018, the content of the written objection submitted on January 4, 2018 did not have any particular influence on the commencement of the review procedure, and the written objection submitted on January 4, 2018 appears to have been prepared for the purpose of completing the written objection submitted on December 28, 2017, it appears that the information prohibited from leakage to the commencement of the examination procedure by the Defendant’s side following the Intervenor’s written objection does not affect the Intervenor’s written objection.

4) Article 7(d)3 of the instant Guidelines only provides that “an act of opening, reporting, or damaging sealed documents constitutes an unfair conduct related to public bonds” and does not provide for the validity of the request of applicants, etc. Accordingly, the submission of screening data for the initial major examination without authority may not be deemed unlawful as the Intervenor’s objection.

C. The validity of the unfair determination on the initial major review of the Fair Trade Commission and the lawfulness of the measure suspending contact in the instant case

1) Relevant legal principles

Whether to appoint university professors, etc. falls under the amount of free evaluation for the purpose of a consistent determination by taking into account the high level of specialized knowledge, teaching ability, personality, etc. required by the person having authority to appoint professors, etc. under the Education Act. However, if there are special circumstances to deem that the refusal of appointment by university professors, etc. of the person having authority to appoint has considerably lost the legitimacy under the social norms, it may be deemed that the person has abused discretion (see, e.g., Supreme Court Decisions 96Nu12641, Jan. 23, 1998; 2004Du7818, Sept. 28, 2006). Such a legal principle may apply mutatis mutandis to a disposition to suspend the interview with a person selected as a final interviewer during the course of teaching.

2) Specific determination

A) Comprehensively taking account of the purport of the entire arguments, the following facts are revealed based on the judgment that the result of the first major examination of the Fair Trade Commission of this case is unfair. As such, the defendant, based on the judgment that "the result of the first major examination of the Fair Trade Commission of this case is unfair," the judgment of the Fair Trade Commission of this case is fair. Thus, the judgment of the Fair Trade Commission of this case is appropriate."

나 ) 갑 제1호증, 을 제11호증의 각 기재, 제1심 증인 이△△의 증언에 변론 전체의 취지를 고려하면, 이 사건 공정위원회는 당초 전공심사의 심사위원 중 2인이 '전공 1단 계 질적심사 '를 하는 과정에서 편향적인 채점을 하였다는 점을 이유로 당초 전공심사 의 결과가 불공정하다는 판정을 한 사실을 인정할 수 있고, 위 심사위원 2인은 '전공 1 단계 질적심사' 과정에서 원고에게 만점에 해당하는 30점을 주면서 다른 지원자들에게 다소 낮은 점수를 부여한 점, 위 심사위원 2인의 지원자별 점수 편차는 나머지 심사위 원의 지원자별 점수 편차보다 크게 벌어진 점을 알 수 있다. 그런데 앞서 든 증거, 제1 심 증인 공■■의 증언에 변론 전체의 취지를 종합하여 알 수 있는 아래와 같은 여러 사정들에 비추어 보면, 이 사건 공정위원회가 위 심사위원 2인의 위와 같은 채점결과 만을 근거로 '당초 전공심사의 결과가 불공정하다' 고 판정한 것은 타당하지 않다고 봄 이 상당하다.

(1) During the 'level of quality examination', one examiner was conducted within the scope prescribed by the instant guideline (14 to 30 points) to the Plaintiff, 22 points to the rest of applicants, 30 points to the Plaintiff, 18 points to the rest of applicants, and 16 points to the remainder of the examiners. However, given that the grading act is an essential nature that is dependent exclusively on a subjective evaluation based on high level of professional knowledge, knowledge, and knowledge held by the evaluators, it is recognized that a considerable discretion has been given to the examiners based on an independent judgment based on professional knowledge within the scope determined by statutes and guidelines. Furthermore, the two examiners’ marks were conducted within the scope prescribed by the instant guideline (14 to 30 points) to the extent that each of the examiners did not intentionally give a certain degree of points to each of the examiners at the initial stage of the grading, and that each of the examiners who did not give a certain degree of points to each of the examiners at the time of the examination were given to some of the examiners who did not give a certain degree of points to each of the examiners.

(2) It is true that two examiners gave 30 points out of the full score to the Plaintiff. However, if two examiners selected one among the applicants and give 1 etc. the full score first, it seems reasonable to give a certain degree of gap to 2, 3 etc., and then the remaining points are given. It is difficult to deem that the Plaintiff obtained a full score according to such marking method, and the Plaintiff was given a special non-official score. In addition, it is also difficult to deem that two of the remaining three examiners gave 30 points out of the full score, 29 points out of the full score, 30 points to the Plaintiff, and 4 of the total five examiners gave 29 points out of the full score, or 1 point from the full score, to the Plaintiff, and it cannot be deemed that two of the examiners were illegally allocated to the Plaintiff by deeming that two of the judges were given the full score to the Plaintiff.

(3) According to the statement of the minutes of the Fair Trade Commission (No. 11) on January 4, 2018, the instant Fair Trade Commission recognized that it could not determine whether a specialized examination was conducted on the basis of only the differences in scores among the examiners of the initial specialized examination, but determined that the result of the initial specialized examination was unfair on the ground of the difference in scores among the members of the initial specialized examination and the written objection prepared by the Intervenor. At the time of the first instance court, △△△ was a member of the instant Fair Trade Commission, and testified to the effect that, in addition to the above materials, the applicant was also examined the performance materials submitted by the first instance court, and it is difficult to view that △△△△△ was faithfully examined the performance materials, considering that there was no experts of ○○ or the board of directors among the members of the instant Fair Trade Commission, it is considerably difficult to view that such a member of the Fair Trade Commission was conducted in consideration of the contents of the major materials submitted by △△△ or the board of directors.

(4) Although the instant Fair Trade Commission could sufficiently investigate the examiners of the initial major examination, such as demanding the presentation of explanations, it seems that the further examination was not conducted. In light of the fact that an interview examiner is selected by one ordinary person in the course of employing faculty members of △△ University, and an ordinary recruitment is conducted for those who passed the interview trial, the interview examination seems to be a very important process. However, the Defendant, including the instant Fair Trade Commission, did not seem to have sufficiently reviewed the process of determining whether to suspend the important procedure.

(5) Although Defendant’s side repeatedly asserts that there was a letter of intent to suspect that the two examiners conspired and gave a biased score to the Plaintiff, the two examiners repeatedly point out that they given a high score to the Plaintiff, and that they given an excessive lower score to the applicants, and do not have any assertion or proof as to other specific circumstances that justify such a fair ruling. Therefore, even though there were no specific facts and circumstances, it is more doubtful that the instant Fair Trade Commission judged that the two examiners conspired in order to give a biased mark, rather than a biased judgment. Moreover, at the time of the determination of the instant Fair Trade Commission, the Defendant did not present any objective grounds to acknowledge that the two examiners conspired, even before the closing of argument in this court, by the date of the aforementioned determination of the Fair Trade Commission.

(6) 이△△은 제1심법원에서 이 사건 공정위원회가 위 불공정 판정을 하면서, 위 심 사위원 2인은 ●●● ■■ 분야의 전문가가 아닌데 관련 분야인 ●●● 및 판소리를 전공한 학외 심사위원들의 점수와 다르게 배점되었다는 점을 고려했다는 취지로 증언 하였다. 그런데 심사위원들 중 일부가 ●●● ■■ 분야의 전문가가 아니라는 점은 심 사위원 자격에 대한 문제가 될 수 있음은 별론으로 하고, 곧바로 심사결과의 공정성 내지 객관성의 문제로 연결할 수는 없다. 또한 위 심사위원 2인은 비록 ●●● ■■ 분야의 전문가는 아닐지라도 국악학(대금) 및 음악학(성악) 교수들로서 기본적으로 국 악·음악학 비전공자인 이 사건 공정위원회 위원들보다는 음악예술에 대한 조예가 더 깊다고 보아야 하므로 표면적인 위와 같은 사정만으로 위 심사위원 2인의 채점결과가 불공정하다고 쉽게 단정할 수는 없다.

(7) Considering the fact that ordinary university professors require more morality than ordinary workers and that the professor of △△ University is also a state public official, it is necessary to consider whether the Defendant is fair in the process of employing university professors, as well as whether the Defendant appears fair in the process of employing university professors. However, since the marking result by each applicant, including the score table, it is difficult to consider as a material to determine whether it appears fair in the external appearance or not. Furthermore, it is difficult to determine whether the recruitment process was conducted fairly only with the score by the applicant. Accordingly, it is difficult to readily accept to determine that some of the examiners of this case, unlike other examiners, put some of the examiners at a different score by the applicant, may appear unfair in the external appearance. Rather, the Defendant did not present specific and accurate reasons for the suspension of interview in this case, such as the Defendant’s offering of an objection to the “fairness” as a ground for suspending the interview.

(8) Although the Fair Trade Commission judged that two of the examiners initially engaged in collusion with a specific applicant, it did not start a specific disciplinary procedure against them. However, in light of the fact that the examiners in collusion with regard to the appointment of teaching staff and give excessively high or low points to a specific applicant, the degree of misconduct seems to be excessive, and that the Defendant, in fact around July 2007, issued a disposition to dismiss a specific applicant in a political diplomatic department, the Fair Trade Commission’s failure to start the disciplinary procedure against the two examiners is difficult in light of the foregoing precedents.

In the first instance court, the △△△△ testified that the said two examiners were subject to sanctions on the ground of collusion, and that the said two examiners, who are the other party to the sanctions, appear to have not been notified of the sanctions, etc., were actually imposed. Even if sanctions were imposed, the said sanctions appear to be a minor disposition against the removal of position. Ultimately, the response of the Defendant, such as the instant Fair Trade Committee, against the two examiners, is difficult to easily understand.

C) Therefore, the Defendant appears to have taken the instant measure of suspending the interview against the Plaintiff solely based on the unfair judgment of the Fair Trade Commission. Therefore, it is reasonable to view that the instant measure of suspending the interview was considerably inappropriate under social norms. Therefore, the instant measure of suspending the interview was unlawful as a disposition that was taken by deviating from and abusing discretionary power.

D. Whether there was an application for mediation by △△ University Art University and Public Bonds Management Committee

1) According to the instant guidelines, an applicant for full-time teachers may file an objection in writing with the Committee on the Management of Government Bonds of the Republic of Korea (Article 8(a)). In the event that such measures are not possible because it is necessary to investigate and take appropriate measures against the above objection, the Committee on the Management of Government Bonds of the Republic of Korea may file an application for mediation in writing with the Committee on Fair Trade, along with relevant data (Article 8(b) and (c). The Committee on the Management of Government Bonds of the Republic of Korea may conduct an investigation and deliberation on public employment only upon request from the Committee on the Management of Government Bonds of the Republic of Korea and the total head of the relevant agency (Article 5(b)). In full view of these facts, it is deemed that the Committee on the Management of Government Bonds of the University of Arts may investigate or deliberate on the fairness in relation to the initial disclosure employment and the initial disclosure of employment only where the aforementioned Committee applied for mediation or requested the Committee on the Management of Government Bonds of the

2) Comprehensively taking account of the aforementioned evidence and the purport of the entire arguments in evidence evidence Nos. 24 through 26, the Intervenor filed an objection to the initial major examination by submitting a written objection to the Arts University Management Committee of △△ University on December 28, 2017. At the fifth session of January 3, 2018, the said Arts University Public Bonds Management Committee determined that “the Intervenor’s deliberation of the Intervenor’s objection is insufficient in the objective basis for fair trial because the Intervenor’s arbitrary interpretation is insufficient,” and the said Arts University Public Bonds Management Committee notified the Defendant of the results of the determination on the Intervenor’s objection on January 4, 2018. The instant Fair Trade Committee may recognize the fact that the deliberation on the fairness of the initial major examination was conducted on January 4, 2018, and that the result of the initial major examination was unfair.

In addition to the following circumstances, the Fair Trade Commission rendered a decision to suspend and review the interview in this case by conducting an investigation and deliberation even though there is no application for mediation, a fair investigation, and a request for deliberation from the Commission on the Management of Public Bonds of the Arts Universities and Colleges, relating to the fairness of the initial examination. Accordingly, the decision to suspend and review the interview in this case is unlawful since there is a procedural defect that did not undergo the procedures set forth in the guidelines of this case.

A) Since the above art university public bonds management committee determined that the intervenor's objection cannot be filed on the ground that the objective grounds for the intervenor's objection are insufficient, it seems objectively clear that the above art university public bonds management committee did not make a decision that the mediation or measure is impossible. Moreover, it seems that the above art university public bonds management committee notified the defendant of the intervenor's objection and its decision to the defendant does not request an investigation or deliberation on the fairness of the original major examination, but simply reported or notified the result of the resolution.

나 ) 위 예술대학공채관리위원회가 피고 측에 참가인의 이의신청에 대한 판단을 통지 한 공문인 "제59회 전임교원 공채 '●●● ■■' 분야 이의신청 건에 대한 논의결과제 출( 갑 제26호증의2)" 의 제2조 가항 제3호에 "이에 대한 장치 미비로 인한 '전임교원 일 반 공개채용 전형지침' 제1항에 따른 우수한 교원 확보를 위한 공정성 시비(해당 이의 신청 포함) 에 대해 공채공정관리위원회의 세세한 논의 및 대응이 필요함"이라고 기재 된 것은 사실이다. 그런데 위 기재 내용은 위 논의결과제출 공문의 제2조 가항 제2호 를 포함한 나머지 전체 내용까지 종합하여 보면 , '지원자와 특수관계에 있다는 사유로 배제된 심사위원 조항' 에 대하여 참가인의 이의신청을 포함하여 지속적인 공정성 시비 가 발생하므로, 이 사건 공정위원회에서 위 조항에 대한 근본적이고 실효성 있는 조치 를 마련할 필요성이 있다는 사정을 촉구하는 취지로 보인다. 따라서 위 기재 내용을 고려하더라도, 위 예술대학공채관리위원회가 이 사건 공정위원회에 이 사건 전형지침 의 특정 조항에 대한 구체적인 조치 마련을 요청한 것으로 볼 수 있음은 별론으로 하 고 , 참가인의 '전공심사 공정성' 에 관한 이의신청에 대하여 조정을 신청하거나 공정성 조사·심의를 요청한 것으로 볼 수는 없다.

E. Sub-decision

As a result, the Plaintiff’s claim seeking the revocation of the interview suspension disposition in this case is reasonable, since the interview suspension disposition in this case is not only a substantive defect but also a procedural defect exists.

4. Determination on the determination of successful applicants of this case

A. Violation of the disposition suspending the interview in this case by determining successful applicants in this case

The decision to suspend and review the interview of this case based on the initial decision of the Fair Trade Commission on the review of major of this case was made by deviating from and abusing discretion, and thus illegal disposition is also made. In addition, even though the original decision of the Fair Trade Commission on the result of the review of major of this case did not apply for the adjustment of public bonds of art and university at △△△ University, and request for investigation and deliberation, it is judged that the Fair Trade Commission conducted an investigation and deliberation on the fairness of the initial review of this case and made an unfair decision. Therefore, it is reasonable to deem that the decision to suspend and review the interview of this case was unlawful, and that the decision to determine the successful bidder of this case was made based on the premise that the decision to review was legitimate.

(b) Whether procedures for major reexamination have been conducted fairly;

1) According to Article 11-3(2) of the Public Educational Officials Act, when a university faculty member is newly appointed, an objective and fair examination shall be conducted by appointing or commissioning an examination member. Articles 7 through 9 of the instant Guidelines provide for the definition of unfair conduct, type, and remedy procedure for such unfair conduct on the premise that the Defendant is obligated to fairly examine in the open recruitment of full-time faculty members. Accordingly, the procedure for reexamination of major which is the procedure for recruitment of full-time faculty members should be conducted fairly

2) Considering the following circumstances, it cannot be deemed that the major reexamination was conducted fairly in view of the aforementioned evidence, Gap evidence Nos. 15 through 17, and the overall purport of the pleadings, and the following circumstances revealed in each statement in Gap evidence No. 19. Thus, the determination of the successful bidder based on the result of the major reexamination is unlawful as procedural defects exist.

A) Article 3(2)1(b) and Article 3(1)1(b)1(b) of the instant Directive excludes a related person, such as a master or doctoral degree guidance professor, a person who has contributed to public employment, a person who has contributed to research performance subject to examination, and a relative relative, etc. However, the examiners of the major reexamination seem not to fall under a related person explicitly provided for in the foregoing provision. However, the foregoing provision appears to have provided absolute grounds for exclusion of a judge, and it cannot be readily concluded that the fairness of an examiner’s composition is guaranteed on the ground that the examiner does not fall under the said related person. In addition, it seems that not only falls under the foregoing absolute grounds for exclusion where the composition of an examiner was made fairly, but also the specific circumstances as to whether he/she falls under the grounds for exclusion.

나 ) 전공재심사의 '전공 1단계' 및 '전공 2단계'를 심사한 학외 심사위원은 총 5명인 데 그 중 3명은 모두 2015. 4. 21.부터 사단법인 한국●●●연주자협회의 이사로 재직 하였다. 그런데 사단법인 한국●●●연주자협회는 두 차례에 걸쳐 참가인의 발표회를 지원한데다가 위 심사위원 3인은 2012. 6. 7. 참가인과 함께 공연을 한 적도 있다. 나 아가 참가인은 △△대학교 국악학과 교수인 성■■에게 ●●● 산조를 사사하였는데, 성■■도 사단법인 한국●●●연주자협회의 이사로서 위 심사위원 3인과 매우 친숙한 관계를 유지하였을 것으로 보이는 점, 학외 심사위원은 총 5명이므로 3명은 과반수에 해당하여 심사과정에서 차지하는 비중이 상당히 큰 점까지 보태어 보면, 재전공심사의 학외 심사위원이 원고와 참가인에 대한 관계에서 공정하게 구성되었다고 보기 어렵다.

C) The Defendant appears to have a very important factor in the process of employing a full-time teacher. Of the two stages of the major reexamination, one of the examiners of the two stages of the major reexamination made an open statement to the public, which is positively assessed against the Intervenor. However, in the process of the examination prior to the completion of the grading, there is a high possibility that some examiners’ open evaluation of the applicants would have considerable influence on other examiners’ gradings. In addition, the Intervenor’s spouse would have undermined the secondary fairness of the examination. Furthermore, if the Intervenor’s spouse was to be aware of the fact that he tried to give a certain speech to an alternative student, it would be well known that it would have been difficult to view that the Intervenor’s open statement would not have any considerable influence on the non-disclosure of the documents attached to the preparation. Furthermore, the Intervenor’s open statement would not have any other effect on the non-disclosure of the documents attached to the written examination (see, e.g., Supreme Court Decision 2002Do3148, Jun. 10, 2019).

D) The Defendant’s decision that the result of the instant review was unfair on the ground of the convenience of allocating 22, 18, 3, etc. as part of the examiners of the initial major examination were given 30 points out of 1, etc., and 20 points and 16 points were given to 2, 18, and 3, etc. of 20 points as to 20 points and 16 points. However, in the case of a major review, 3 of the examiners gave 30 points and 28 points to the intervenors, while giving 16 points and 18 points to the Plaintiff, it seems that the Plaintiff’s 14 points and 16 points and 18 points are higher than the initial major examination were given to the Plaintiff. Furthermore, considering the fact that 3 of the above review examiners who gave 30 points to the Plaintiff higher than the initial major examination, it is difficult to view that there was a relationship between the Intervenor and the Plaintiff’s director of the Korea Association as a result of the instant review as a result of the review.

C. Sub-determination

Therefore, since the decision of successful applicants in this case is unlawful as above, the plaintiff's claim for the cancellation of the decision of successful applicants in this case is well-grounded.

5. Conclusion

Thus, the plaintiff's claim shall be accepted in its reasoning, and since the judgment of the court of first instance differs from this conclusion, it is so decided as per Disposition by cancelling the judgment of the court of first instance and accepting all the plaintiff's claim.

Judges

Maximum Judgment (Presiding Judge)

Kim Sung-ju

Park Jong-hun

Note tin

1) According to the purport of Gap evidence No. 1, witness of the first instance trial, and witness of this case, according to the overall purport of the testimony and pleading of △△△△△, the Defendant, around January 10, 2018,

The decision to suspend and review the interview in this case seems to have been simultaneously notified, and the general guidelines for public disclosure and employment of △ University (No. 4)

section 9(a) of this case provides that the Fair Trade Commission may request necessary measures or reexaminations for the review sector.

In light of the fact that the review decision of this case is determined, the review decision of this case is followed by the disposition of suspending the interview of this case and is on a continuous line.

Since it is reasonable to view the same disposition as the Plaintiff’s disposition, even if the Plaintiff mixed the interview suspension disposition and reexamination decision in the briefs.

The interview suspension disposition of this case is to be judged with the same thing as the interview suspension disposition of this case.

심급 사건

-광주지방법원 2018.10.11.선고 2018구합10057

광주고등법원 2019.8.14.선고 2018누6033

-대법원 2019.12.13.선고 2019두51239

참조조문

-교육공무원법 제11조의3 제2항

-교육법

참조판례

-대법원 1992. 2. 14. 선고 91누3895 판결

-대법원 2001. 3. 23. 선고 99두6392 판결

-대법원 2001. 9. 28. 선고 2000두8684 판결

유사 판례

-광주지방법원 2018.10.11.선고 2018구합10057 판결

-광주지방법원 2018.10.11 2018구합10057

-광주지방법원 2019.11.28 2019구합10757

-광주고등법원 2019.08.14 2018누6033

-광주지방법원 2020.12.03 2020구합12353