[1] The nature of the act of setting evaluation methods and grading standards by the National Health Center, a national health care center, which is an institution administering herb drugs preparation examination (= discretionary act

[2] In a case where a book-type was miswritten and failed to pass the examination result despite the fact that the direction for marking the response card in the computer marking method was sufficiently notified, whether the examination examination authority should confirm the actual book-type and determine whether the pass was passed based on the results of the marking process (negative)

[1] The examination of herb medication is a qualifying examination that is temporarily implemented in order to protect the vested rights of pharmaceutical license holders and pharmaceutical license holders at the time of the enforcement of the above Act, and to protect the vested rights of those who have not obtained a pharmacist license. The examination subjects, publication procedures and passing standards are set by the Presidential Decree. In the above examination, the method of evaluation and grading standards can be set freely within the scope set by the National Health Center in consideration of the purpose and contents of the examination as the examination institution, and the decision of passing or passing the examination based on such standards cannot be deemed unlawful if they are not remarkably unreasonable because they abuse or deviate from discretionary power.

[2] In the pertinent case where the director of the National Health Center of Korea fully notifies the applicant of the method of evaluation of the relevant herb preparation examination and the marking criteria, especially the direction for marking the book column of the answer card, he/she shall give a computer marking to the response card of the above applicant, which is erroneous in the book-type, in accordance with the above marking criteria. The pertinent disposition is legitimate in which the above applicant failed to pass the examination based on the result. Although the examination supervisor did not confirm and point out the type of the answer card and the problem issue at the examination place, or even if there was a remedy by some applicants who did not enter the book-type in the examination, who did not receive the above examination, from the marking by the number of work, the above examination purpose, contents, evaluation method and grading criteria, and in particular, in light of the degree or contents of the objective apparentness of the above errors, it cannot be said that the above conclusion has changed solely on the grounds as alleged above.

[1] Article 21 of the Pharmaceutical Affairs Act (amended by Act No. 4731 of Jan. 7, 1994), Article 4 of the Addenda, Article 2 of the Enforcement Decree of the Pharmaceutical Affairs Act (amended by Presidential Decree No. 14319 of Jul. 7, 1997), Article 27 of the Administrative Litigation Act / [2] Article 21 of the Pharmaceutical Affairs Act (amended by Act No. 4731 of Jan. 7, 1994), Article 4 of the Addenda, Article 2 of the Enforcement Decree of the Pharmaceutical Affairs Act (amended by Presidential Decree No. 14319 of Jul. 7, 1997), Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 97Da3200 delivered on July 22, 1997 (Gong1997Ha, 2639) Supreme Court Decision 97Nu1191 delivered on November 28, 1997 (Gong1998Sang, 144)

Plaintiff

The President of the National Health Center

Seoul High Court Decision 96Gu42705 delivered on July 22, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

In full view of the provisions of Article 21 of the Pharmaceutical Affairs Act (amended by Act No. 4731 of Jan. 7, 1994; hereinafter the same), Article 4 of the Addenda, and Article 2 of the Addenda of the Enforcement Decree of the Pharmaceutical Affairs Act (amended by Presidential Decree No. 14319 of Jul. 7, 1997), the examination of herb medication in this case provides for the basis for the implementation of pharmaceutical industry as above, and the establishment of the herb pharmacist system to take charge of pharmaceutical medication as a whole. As such, the examination of herb medication in this case is conducted temporarily in order to protect the vested rights of those who have obtained a pharmacist's license and who have not obtained a pharmacist's license, and the subjects, publication procedure and passing criteria are determined by Presidential Decree. The examination method and marking criteria are discretionary acts that the defendant can freely determine within the scope prescribed by the relevant Acts and subordinate statutes, taking into account the purpose and contents of the examination as examination, and any passing or non-compliance disposition based on such standards cannot be deemed unlawful if they deviate from or considerably unreasonable.

Examining the reasoning of the judgment below in comparison with the records and relevant statutes, the court below acknowledged the facts as stated in its judgment, and found that in this case, where the defendant sufficiently notified the plaintiff who was the applicant of the method of evaluation of the herb preparation examination of this case and the marking criteria, especially the direction for marking the book column of the answer card of this case, the disposition of this case in which the plaintiff's answer card of this case was erroneous, is legitimate, based on the above marking criteria. Although the examination supervisor did not confirm and point out the type of the plaintiff's answer card and the problem issue at the examination site, or even if some applicants who did not enter the book form in the examination of this case were relievedd by the marking of the number of work, the above conclusion can not be viewed to vary solely on the grounds as alleged by the plaintiff, in light of the purpose and contents of the examination of this case, its evaluation method and marking criteria, the degree of objective apparentness of the above error, and its contents, etc.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Sung-sung (Presiding Justice)