(영문) 서울고등법원 2018.11.16. 선고 2017누78041 판결

The judgment of the first instance shall be revoked. The defendant's rejection to recommend the appointment of a new principal with respect to the plaintiff on March 1, 2016 shall be revoked.

Reasons

1. Details of the disposition;

A. On March 1, 1978, the Plaintiff was newly appointed as a teacher of the New Elementary School, and on March 1, 2012, the term of appointment was until February 29, 2016, and was appointed as the principal of the B elementary school.

B. On December 3, 2015, the expiration date of the term of appointment of the principal of the school submitted to the Superintendent of the Gyeonggi-do Office of Education on December 3, 2015, a letter of appointment-related net that the Plaintiff wishes to be appointed as a senior teacher at the time of the retirement of the principal in the second order.

C. The Defendant did not recommend the appointment of the principal as to the Plaintiff, and on February 1, 2016, the Superintendent of the Gyeonggi-do Office of Education appointed the Plaintiff as the senior teacher on March 1, 2016, and issued a personnel order ordering the Plaintiff to work at an elementary school designated by the head of the Gancheon District Office of Education and the head of the Gancheon District Office of Education (hereinafter “instant disposition”).

D. Accordingly, on March 30, 2016, the Plaintiff filed an appeal with the Appeal Committee for Teachers seeking the revocation of the recommendation for appointment of a principal or the revocation of the demotion. According to the Public Educational Officials Act, on May 18, 2016, the Appeal Committee for Teachers’ Office decided to dismiss the Plaintiff’s appeal on the ground that the Plaintiff’s rejection of the Plaintiff’s refusal of appointment of a principal among the principal of a school is not subject to a disposition for appeal, since it is difficult to deem that the principal of a school is in the middle of the principal, and it is difficult to view that the Plaintiff is in the middle of the principal, as it is difficult to say that the Plaintiff’s rejection of the Plaintiff’s refusal of appointment of a principal of a school does not constitute a disposition for appeal, since the Plaintiff’s rejection of the Plaintiff’s refusal of appointment of the principal of a school does not constitute a disposition for appeal.

[Ground of recognition] The fact that there is no dispute, Gap's 1 through 5, 8, Eul's 10, 11, and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's main defense

1) The Plaintiff cannot be deemed to have submitted to the Superintendent of Gyeonggi-do a letter of wishing to appoint a principal as a principal teacher or a senior teacher, and the Plaintiff has not filed an application for recommendation of appointment as a principal teacher with the Defendant. Therefore, there is no disposition that the Defendant refused to recommend appointment as a principal teacher against the Plaintiff. Even if the Defendant refused to recommend appointment as a principal teacher against the Plaintiff, the Plaintiff’s refusal of appointment as a principal teacher does not constitute a disposition that is subject to administrative litigation, since there is no right to request the Defendant to recommend appointment as a principal teacher in accordance with laws and regulations or cooking that allow the Defendant to recommend appointment as a principal teacher, and thus, the refusal

2) In order for a public educational official who was subject to a disciplinary action or other unfavorable disposition against his/her own will to file an appeal seeking revocation of the disposition, it is necessary to undergo a petition review procedure. The Plaintiff filed a petition review on March 30, 2016, when he/she received a notice of a personnel order of senior teacher around the beginning of February 2016, and the deadline for requesting a petition review was set as of March 30, 2016, and thus, the Plaintiff’s petition for a petition review is unlawful. Accordingly, the instant lawsuit is unlawful because it does not meet the requisite requirements

B. Whether the disposition of the instant case is recognized

1) Relevant legal principles

The issue of whether a certain act of an administrative agency can be a subject of an appeal cannot be determined abstractly, and in a specific case, an administrative disposition is an enforcement of law with regard to a specific fact conducted by an administrative agency as a public authority, which directly affects the rights and obligations of the people, based on the content and purport of the relevant Act and subordinate statutes, the subject, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law and the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see, e.g., Supreme Court en banc Decision 2008Du167, Nov. 18, 201

2) Determination

A) Article 29-2 (1) through (3) of the Public Educational Officials Act provides that the term of office of the principal shall be four years on the recommendation of the defendant, and he/she may be reappointed only once. Article 29-2 (4) of the Public Educational Officials Act and Article 9-5 (1) of the Decree on the Appointment of Educational Officials provide that the principal who has completed the first term of office may be reappointed to the principal unless there is any special reason for disqualification. Article 9-5 (3) of the Decree on the Appointment of Educational Officials provides that the Minister of Education shall determine matters necessary for the second term of the principal. Article 3 of the "Guidelines on the Implementation of the tenure System of the principal and the principal" provides that the personnel committee shall have the person who is in the middle of the principal: (i) physical and mental health conditions; (ii) whether there is a defect in the management ability of the school; (iii) whether there is any other reason for difficulty in performing his/her duties; and (iv) whether there is any special reason for disqualification in relation to the appointment of the principal.

B) First of all, the Defendant will examine whether there was a disposition excluding the recommendation for appointment of the Plaintiff in the middle of the principal. In addition to the overall purport of the arguments in the evidence as seen earlier, the “Guidelines for the Implementation of the tenure of the principal and the principal” can be acknowledged as having failed to submit the Plaintiff’s appointment documents to the Defendant according to the deliberation of the Gyeonggi-do Personnel Committee for Public Educational Officials (hereinafter “Personnel Committee”) that there is a special reason for disqualification for the Plaintiff.

According to the above facts, the Defendant’s failure to recommend the appointment of the principal to the Plaintiff may be recognized as arising from failure of the Superintendent of Gyeonggi-do to submit documents for appointment of the principal to the Defendant by the Superintendent of Gyeonggi-do. When the Defendant’s act of recommending the appointment of the principal of the principal is performed through the procedure for submitting documents for appointment of the principal of the Gyeonggi-do Superintendent of the Office of Education, the Defendant’s act of recommending the appointment of the principal of the principal shall be deemed to include omission that has not reached the appointment recommendation as a result of failure to submit documents for appointment from the superintendent of education. As seen earlier, even though the Plaintiff submitted a letter of desire to appoint the principal on December 3, 2015 to the Superintendent of Gyeonggi-do Superintendent of the Office of Education, as long as the Plaintiff was excluded from the Defendant’s person subject to the appointment recommendation as the principal of the principal

C) Next, in light of the contents and purport of each provision described in each subparagraph of paragraph (a) above, the principal of the first term of office is expected to undergo a legitimate examination as to whether an appointment recommendation is made in accordance with the procedures prescribed by the relevant Acts and subordinate statutes, which are the appointment-recommendation authority, and has the right to file a statutory or sound application for a reasonable and fair examination as to an appointment recommendation. Furthermore, if the Defendant, who is the appointment-recommendation authority, excludes the first term of office from an appointment recommendation recommendation for an arbitrary reason, is not considered as a disposition that is the object of an appeal litigation, then there is no way to relieve the rights infringed upon or legal interests. Accordingly, the instant disposition that excludes the Plaintiff from an appointment recommendation for the first term of office among the principal constitutes an administrative disposition that directly affects the Plaintiff’s status and legal status whose term of appointment expires.

D) A disposition to exclude the Defendant from a recommendation for appointment as the principal of a school, and the above disposition constitutes a disposition subject to appeal litigation. This part of the Defendant’s assertion is without merit.

C. Whether the plaintiff's request for examination of the petition is illegal

1) According to Article 53(1) of the Public Educational Officials Act and Article 16(1) of the State Public Officials Act, with respect to disciplinary action and other unfavorable measures against a public educational official’s will, it shall not be subject to an administrative litigation without going through the review decision of the Appeal Committee for Teachers. Article 9(1) of the Special Act on the Improvement of Teachers’ Status and the Protection of Educational Activities, which fall under the special provisions of Article 27(1) of the Administrative Appeals Act, requires an appeal review within 30 days from the date of becoming aware of such disposition. Meanwhile, pursuant to Article 58(1) of the Administrative Appeals Act, when an administrative agency issues a disposition, it provides that the administrative agency shall notify whether it is entitled to file an administrative appeal, the procedure for filing an appeal, and the period for filing an appeal. According to Article 27(3) and (6) of the Administrative Appeals Act, if an administrative agency fails to notify the period for filing an appeal, the administrative

2) In addition to the whole purport of the pleadings in the statement in the evidence Nos. 1, 1, 2, and 11, the Superintendent of the Gyeonggi-do Office of Education shall appoint the plaintiff as the senior teacher on February 1, 2016 and the plaintiff as the senior teacher on March 1, 2016, and did not notify the plaintiff of the personnel order for an elementary school designated by the head of the Gyeonggi-do Office of Education, Ansan-do Office of Education to examine the appeal and the period for requesting a trial. Unlike whether the defendant may file an appeal against the plaintiff on the disposition of this case, and the defendant may also file an appeal against the plaintiff. Therefore, it is reasonable to view that the period for examining the appeal against the disposition of this case is within 180 days from the time when the plaintiff was notified of the personnel order issued on February 1, 2016 pursuant to Article 27(3) and (6) of the Administrative Appeals Act, and the plaintiff's appeal is justified within 30 days from February 1, 2016 to 30 days before the appeal procedure of this case.

D. Sub-committee

The lawsuit of this case is legitimate, and all of the defendant's defenses are without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The assertion on substantive illegality

A) The Plaintiff did not have any ground for the instant disposition, including that the Plaintiff recommended the faculty members of B elementary school to participate in the online evaluation of the teachers and staff members of B, but did not make an illegal solicitation, such as requesting the teachers and staff members to give good scores, or forced them to make a false statement. Therefore, the instant disposition is unlawful.

B) In light of all circumstances, including the fact that the instant disposition was based not only on mistake of facts but also on the basis of the Plaintiff’s public interest and the Plaintiff did not have been subject to disciplinary action or misconduct while working in good faith for not less than 37 years, the instant disposition was unlawful as it was an abuse of discretionary authority.

2) The argument on procedural illegality

The above "Guidelines for the Implementation of the Term of Office for the Superintendent" stipulates that a personnel committee shall deliberate on whether a person subject to the term of office for the principal of a school has a special reason for disqualification. However, a deliberation by the personnel committee has not been conducted or a formal deliberation has been conducted on whether he/she is in the principal of a school. Since the procedure for the deliberation of the personnel committee, which is the premise for the disposition of this case

(b) Related statutes;

It is as shown in the attached Form.

C. Determination on the existence of substantive illegality

1) Facts of recognition

A) According to the "On-line Evaluation Plan for the Second half-yearly Teachers" prepared by the Gyeonggi-do Office of Education around November 2015, 2016, the online evaluation is one of the procedures for conducting a part-time examination of the principal with respect to the expiration of the first term of office. If the results of the online evaluation show that the total number of points is less than 70% or the participation rate is less than 60%, it is determined that it is disqualified for the middle of the principal through on-site inspection.

B) On November 26, 2015, the Superintendent of the Gyeonggi-do Office of Education sent a public notice of "online evaluation plan notification" to the head of a school who is subject to the middle-standing online evaluation of the school located within his/her jurisdiction, including the Plaintiff, from December 8, 2015 to December 14, 2015, to the head of a school who is subject to the intensive online evaluation of the principal. From March 1, 2016 to December 14, 2015, 42 of the faculty members of B elementary school were participating in the online evaluation of the principal from December 8, 2015 to December 14, 2015. At that time, 74 points that the Plaintiff received from the above online evaluation are 74 points.

C) On December 8, 2015, the Gyeonggi-do Office of Education reported online civil petition that "the Plaintiff forced its teachers to make a good evaluation or to observe the online evaluation process, etc." on the online evaluation of this case. On December 9, 2015, the Gyeonggi-do Office of Education dispatched the school inspector, etc. on December 4, 2016 to conduct an investigation into the civil petition (hereinafter "the investigation of this case") for B elementary school teachers and staff.

D) From December 17, 2015 to December 21, 2012, the Gyeonggi-do Office of Education re-examineed the Plaintiff’s middle-standing online evaluation. Of 43 faculty members, 42 of them participated in the above online evaluation. The Plaintiff’s survey total points in the above revaluation (hereinafter “instant online re-evaluation”) are 61.2 points much less than the survey total points (74 points) that were received in the initial evaluation.

E) On January 11, 2016, the investigator of the instant case recognized the grounds for disciplinary action (hereinafter “instant grounds for disciplinary action”), and submitted a report that the Plaintiff violated Article 56 (Duty of Good Faith) of the State Public Officials Act, Articles 10 (Prohibition of Involving Rights, etc.) and 12 (Prohibition of Involving Rights, etc.) of the Code of Conduct for Public Officials of the Gyeonggi-do Office of Education, and that a resolution of heavy disciplinary action against the Plaintiff is necessary.

F) The Gyeonggi-do Office of Education held the first personnel committee in January 1, 2016, 21, and 2016. The Committee decided that the Plaintiff is disqualified for the recommendation of appointment as the principal of the school on the ground that the result of deliberation on whether the Plaintiff is a principal of the school, based on the fact that the results of evaluation conducted by civil petitions and audits are less than 70% in total, and that the results of on-site inspection were determined to be disqualified.

G) On May 13, 2016, the Superintendent of the Gyeonggi-do Office of Education issued a disposition of suspension from office for three months pursuant to Article 78(1)2 of the State Public Officials Act (hereinafter “instant disciplinary action”) against the Plaintiff on the ground that the Plaintiff violated Article 56 of the State Public Officials Act and Articles 10 (Prohibition of Involving Rights, etc.) and 12 (Prohibition of Involving Rights, etc.) of the Code of Conduct for Public Officials of the Gyeonggi-do Office of Education on the ground that he/she committed each misconduct described in the grounds for the following disciplinary actions while serving as the principal

1. After recognizing the 0th 5th 2nd 2nd 2nd 1st 2015’s online evaluation plan, the Plaintiff requested 20th 2nd 2nd 1st 2nd 2nd 3rd 2nd 2nd 3rd 1st 2015’s personal pressure points for each school year and asked 1st 2nd 3rd 2nd 3rd 2nd 2nd 3rd 2nd 2015’s online evaluation date, and demanded 1st 2nd 3rd 2nd 2nd 3rd 2nd 2nd 3rd 2nd 2nd 1st 3rd 2nd 3rd 2nd 2nd 3rd 2nd 2nd 2nd 1st 2nd 3rd 2nd 2nd 3rd 2nd 2nd 3rd 2nd 2nd 3rd 2nd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd .

There is a fact that the examiner orders the change from the existing C to D.

H) On June 8, 2016, the Plaintiff filed a petition review with the Appeal Commission for Teachers seeking revocation of the instant disciplinary action, but the Appeal Commission rendered a decision to dismiss the Plaintiff’s said claim on July 27, 2016.

(i) On November 10, 2016, the Plaintiff filed a lawsuit seeking the revocation of the instant disciplinary action with the Suwon District Court (2016Guhap69100), and on July 26, 2017, the Suwon District Court dismissed the Plaintiff’s claim on the ground that the instant disciplinary action was fully recognized and cannot be deemed to have been abused or abused discretion. The Plaintiff appealed against this, but the court dismissed the Plaintiff’s appeal (20176669), and the Plaintiff appealed against the judgment dismissing the appeal of this court (18Du30907), but the Supreme Court dismissed the appeal (18Du30907), and the Plaintiff did not have any dispute with the grounds for recognition, and all statements and arguments stated in Gap’s 10 through 17 evidence, Eul’s 1 through 9, 13 through 16, 25 through 27.

2) Determination as to the existence of the reasons for the disposition

A) Relevant legal principles

Although the court of the lawsuit of the administrative litigation is not bound to the fact-finding of another administrative trial, the facts recognized in the relevant administrative trial that have been established are significant evidence in the relevant administrative litigation. Thus, barring special circumstances where it is deemed difficult to adopt a factual judgment of the relevant administrative trial in light of other evidence submitted in the relevant administrative litigation, the facts opposed thereto cannot be recognized (see, e.g., Supreme Court Decision 2016Du292, Jun. 23, 2016).

B) Determination

In light of the following facts and circumstances, it is reasonable to view that there exists a ground for the instant disposition. The Plaintiff’s allegation in this part is without merit.

(1) As a result of the instant online revaluation, the Plaintiff was determined to be disqualified as the principal through the instant investigation in accordance with the “On-line Evaluation Plan for Persons who are in charge of the first half of the year 2016,” with 61.2 points.

(2) The instant disposition was conducted based on the results of the instant investigation to the effect that the Plaintiff was disqualified as the principal of the school due to the recognition of the instant disciplinary cause. Accordingly, whether there was a fact constituting the grounds for the instant disposition ought to be determined depending on whether the instant disciplinary cause was recognized.

First of all, this case’s disciplinary ground Nos. 1 (1) (1) (1) was examined. The evidence reveals that ① some of the B elementary school faculty members present at the court of first instance in the course of the investigation and investigation conducted thereafter to the Gyeonggi-do Office of Education in the process of the investigation, ② The Plaintiff’s explanatory guns in the online re-evaluation was 61.2 points that much less than the original explanatory guns (74 points) received in the online re-evaluation; ③ C was conducted on behalf of the head of the facility management office in the instant evaluation process in order to assist the Plaintiff as it was impossible to spread the Plaintiff’s recommendations, and thus, C was conducted on behalf of the head of the facility management office in the instant evaluation process, and submitted a confirmation letter to the Gyeonggi-do Office of Education. ④ In light of the fact that the Plaintiff appeared in the court of first instance in the instant case’s revocation of the instant disciplinary action, it was reasonable to recognize the Plaintiff’s duty of fair evaluation of the Plaintiff’s disciplinary ground No. 1 (2) on behalf of the teachers and staff members of Gyeonggi-do.

Summary of Facts confirmations, etc.

A person shall be appointed.

(3) Next, this case’s disciplinary ground No. 2 (2) (2)(2)(2)(2)(2)(2)(2)(2)(2)(2)(2)(3)(2)(2)(3)(2)(2)(2)(3)(2)(4)(2)(2)(3)(2)(2)(2)(2)(3)(3)(2)(2)(2)(1)(2)(2)(2)(2)(2)(2)(2)(2)(3)(3)(2)(3)(2)(2)(2)(3)(2)(2)(2)(3)(2)(2)(2)(2)(3)(3)(2)(3)(2)(3)(20)(2)(3)(20)(2)(3)(3)(3)(2015)(2)(3)(3)(4)(1)(2)(20)(3))(3)(3)(3)(4)(3)(20)(3)(3)(2)(4))(3)))(1)(3)(3)(3)(3))(1)(1))(1)))(1))).

3) Determination as to whether discretionary power is deviates or abused

A) Relevant legal principles

With respect to the appointment or termination of the principal with broad authority over education in elementary and secondary schools, it is required to evaluate whether the candidate has the ability and qualities adequate to guarantee the right to undergo education of citizens more effectively and to meet the expectations of parents and students, who are educational consumers. As such, the appointment or termination of the principal has a wide range of discretion than the administrative disposition against the general public or the disciplinary action against the public officials within the scope prescribed by statutes. Therefore, if the appointing authority asserts that the decision not to take the principal is inconsistent with the relevant statutes and there is proof of the assertion and proof that the decision not to take the principal is based on the grounds that social norms are reasonable, it shall not be deemed unlawful (see, e.g., Supreme Court Decision 2017Du34162, Mar. 29, 2018).

B) Determination

Examining the following circumstances that can be acknowledged in addition to the purport of the entire argument in the facts admitted as seen earlier in light of the aforementioned legal doctrine, the instant disposition is unlawful as it deviates from and abused discretion. The Plaintiff’s allegation in this part is without merit.

(1) As seen earlier, the instant grounds for disciplinary action are recognized.

(2) Online evaluation is an important procedure that reflects student-centered, realizing on-site education, and opinion on the field through changes and innovation by school principals with expertise and personality in school management, thereby promoting participation and communication as well as creating school culture and realizing educational communities. The criteria for determining whether a school management is a heavy qualification in itself is used as field-based data for evaluation.

(3) The Plaintiff not only seriously damaged the fairness of the instant online evaluation by exercising pressure on teachers and staff to make good-quality evaluations in the instant online evaluation, by having them monitor or act on behalf of some teachers and staff members, or by having them monitor the online evaluation process, but also marizing the purpose of introducing the online evaluation by taking advantage of the position of the principal of the school, and there is no possibility of criticism for the Plaintiff’s act.

D. Determination on the existence of procedural illegality

The fact that the Gyeonggi-do Office of Education held the first personnel committee in January 21, 2016, which held on January 2016, 2016, that the committee held a primary personnel committee, and that the committee has determined the plaintiff as disqualified for the appointment of the principal of the school on the ground that the result of re-evaluation conducted by civil petitions and audits in the online evaluation process was less than 70% of the total points as a result of the re-evaluation conducted by the plaintiff, and that the plaintiff was determined as disqualified as a result of on-site implementation. According to the above facts, it is reasonable to deem that the personnel committee deliberated on whether the plaintiff is in the middle of the principal of the school, and therefore, it cannot be deemed that the procedure for the deliberation of the personnel committee

4. Conclusion

Therefore, the claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be dismissed and unfair. However, the judgment of the court of first instance cannot be revoked and the judgment dismissing the claim of this case against the plaintiff, who is the appellant under the principle of prohibition of disadvantageous alteration in this case that only the plaintiff appealed. Thus, it is more reasonable to dismiss the plaintiff's appeal.