(영문) 서울행정법원 2017.1.20. 선고 2016구합68687 판결

The disposition issued by the Minister of Education (attached Form 1) by the defendant, the disposition (attached Form 2), the disposition issued by the superintendent of education of the defendant Gyeonggi-do, the disposition (attached Form 3), and the disposition issued by the superintendent of education of the defendant Daegu Metropolitan City (attached

Reasons

1. Basic facts

A. Status of the parties

1) The Plaintiff’s World Educational and Social Cooperatives, practical education and social cooperatives, studio Youth Education and Cultural Institute, incorporated association’s New Youth Education and Cultural Institute, incorporated association, International Lifelong Education and Development Association, incorporated association, International Lifelong Education Association, Inc., Eicocco Education, Eico Education for a stock company, Aucco Education for a stock company, Auc Group Education for Auc Group, Auc Group Group Partnership for a stock company, Auc Group Group Group for a stock company, Grand Group Group for Inc., A Puc Group Education, MP World Cultural Education Center for a stock company, IMF World Culture Education, a stock company, Smart Education, A, B, and C (hereinafter “Plaintiffs”) participate in the elementary, middle, and high school after school programs in Gyeonggi-gu Seoul Special Metropolitan City, Gyeonggi-do, and Daegu Metropolitan City, and Plaintiff D and E participate in the students’ first, middle, and high school programs, and Plaintiff F and G participate in the students’ parents’ after school programs in elementary, middle, and after school programs.

2) Meanwhile, Defendant Minister of Education is a person with the authority to establish the standards and contents of curriculum for schools such as elementary schools, middle schools, and high schools. Defendant Seoul Special Metropolitan City superintendent, Gyeonggi-do superintendent of education, and Daegu Metropolitan City superintendent of education are those with the authority to establish standards and contents that are appropriate for the circumstances of each region within the scope of the curriculum (see Article 23(2)

B. Disclosure of the instant guidelines

1) Elementary, middle, and high school programs (hereinafter referred to as “after school”) are required to be non-regular education and protection programs that consist of students’ autonomous participation in schools, other than regular classes.

In accordance with the self-centered principle of beneficiary burden, the former Ministry of Education and Human Resources Development started the pilot project in 2005 and expanded in full from 2006.

2) In relation to the implementation of elementary, middle, and high school after school, the Defendant Education published the “2016 after school operation guidelines (hereinafter referred to as the “guidelines”) and the “2016 after school operation guidelines” (hereinafter referred to as the “education route”) which contain the following matters for the purpose of internalizing after school.

These guidelines are jointly produced by the Ministry of Education, the Office of Education, the Office of Education, the Office of Education, the Office of Education and the Office of Education of 17 Cities/Dos, and the Korea Education Development Institute, and the Office of City/Do Office of Education shall revise and supplement them in accordance with its own conditions and make them available.In addition, it is known that the guidelines revised and supplemented by the Office of Education and the after school operation plan are superior to those jointly made by the Office of Education.1.5.In general, schools may establish after-school programs or programs at the request of students and parents, and shall, in principle, participate in students' voluntary participation (Article 2015-74.6.6.1. (1) After-school programs are operated autonomously by the head of a school after-school consultation with the Board of Education, taking into account the conditions of the school and the demand of students and parents. (2) After-school programs are operated on the basis of autonomous selection of students and parents.

(c) Other methods stipulated in other contract-related Acts and subordinate statutes (a negotiated contract for an examination of qualifications, a negotiated contract for two or more estimates, or a free contract for one-person estimate where there is no time to submit for a specific person or tender, etc.);

3) Accordingly, the superintendent of education of the Seoul Special Metropolitan City revised and supplemented guidelines and paths for the Ministry of Education in accordance with its own conditions, and published "2016 after-school contract practice" and "2016 after-school contract practice", "2016 after-school school operation guidelines" and "2016 after-school operation paths" (hereinafter referred to as "road of Gyeonggi-do Office of Education"), and "2016 after-school operation paths", and "2016 Daegu Metropolitan City superintendent of education of the defendant Daegu Metropolitan City" and "2016 after-school contract practice on the commission of after-school enterprises" respectively.

4) The above guidelines, street, and contract practices (hereinafter referred to as “the guidelines in this case”) respectively disclosed by the Defendants include the following: (i) the point of evaluation of the proposal submitted by the commission company at the first stage of the selection of the commission company is subject to the second stage of the selection of the commission company; (ii) the selection of the eligible company as the successful bidder of the eligible company at the second stage of the selection of the eligible company (hereinafter referred to as “the details related to the second stage and the lowest price bidding”); and (ii) the evaluation of the commission company’s proposal for the performance of the obligation to pay personnel expenses prepared by the commission company (hereinafter referred to as “the contents related to the evaluation of the labor cost ratio”).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 10, purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The parties' assertion

The Plaintiffs, considering that the guidelines of this case were forced elementary, middle, and high schools that intend to organize and operate after-school schools to observe the details related to the second phase and the lowest price bid and the evaluation of personnel expenses ratio, the Plaintiffs seek revocation on the premise that the guidelines are administrative disposition subject to appeal litigation. On the other hand, the Defendants asserted that the guidelines of this case are not administrative disposition.

B. Relevant legal principles

An administrative disposition, which is the object of an appeal litigation, refers to an act under the public law of an administrative agency, which is directly related to the specific rights and obligations of the people, such as ordering the establishment of rights or the burden of obligations under Acts and subordinate statutes, or directly giving rise to other legal effects. The approval, consent, etc., given to a subordinate administrative agency of a superior administrative agency, cannot be deemed an administrative disposition which is the object of an appeal litigation because it does not directly affect the rights and obligations of the people as an internal act between administrative agencies. An act, etc. which does not directly cause legal changes directly in the legal status of the other party or other related persons, such as acts within the administrative authority, intermediation, solicitation, and de facto notification, etc., cannot be subject to an appeal litigation (see Supreme Court Decisions 2006Du18362, Sep. 11, 2008; 2008Du2583, May 15, 2008).

C. Determination

In light of the above relevant legal principles, the guidelines of this case are merely internal acts between administrative agencies based on the internal guidelines setting the general and common standards and matters necessary for organizing and operating after-school schools at each first-line school belonging to each office of education, which is the subject of the organization and operation of after-school schools, and it is difficult to view that the guidelines of this case directly affect the rights and obligations of the people.

Furthermore, examining the two stages and the part related to the minimum competitive bidding, the following may be selected among the following methods in order to enhance the transparency and fairness of the entrusted operation of after-school schools as an important matter at the time of the selection of the entrusted company of a unit school." The phrase "if the estimated price exceeds 20,000 won, the selection may be made by means of two stages of bidding or negotiation." As the guideline of this case does not limit the two stages of bidding and the minimum price bidding method to the sole way of the selection of the entrusted company after-school, it cannot be deemed that the Defendants forced the contents related to the two stages of bidding, and it cannot be deemed that the Defendants constitutes an evaluation committee for a contract by negotiation, as alleged by the Plaintiffs, and it cannot be seen that the procedure is too complicated and strict, and it is practically difficult to select the entrusted company by means of a "contract by negotiation" only because it is actually difficult to do so.

In addition, the Ministry of Education may evaluate the paths of the Gyeonggi-do Office of Education on the basis of the labor cost ratio deliberated by the school operating committee when assessing the basic amount of the proposal.In addition, it is significant that if the company fails to comply with the contents of the Labor Cost Payment Declaration if it is reflected in the evaluation items, it can be the reason for the illegal businessman restriction and termination of the contract. The evaluation of the labor cost ratio is merely an arbitrary evaluation factor for the entrusted company's proposal, and it is merely an example of the labor cost ratio compared to the basic amount to be stated by the entrusted company in the labor cost payment guarantee letter.

In addition, the instant guidelines do not contain any content about the two-stages and the lowest price bid-related content, the labor cost ratio assessment-related content, and any sanctions or disadvantages when the Defendants did not comply with the instant guidelines, and there is no evidence supporting the Plaintiffs’ assertion that the Defendants are giving notice of disciplinary action against non-compliance. Even if the instant guidelines are not complied with, it is assumed that a disciplinary measure is followed if the instant guidelines are not complied with, the subject of the sanction is only a school operating entity of after-school, not the Plaintiffs. As alleged by the Plaintiffs, it is difficult for the Defendants to consider that the said guidelines itself is a disposition even if the Defendants instructed a first-class school manager of the instant guidelines to comply with the instant guidelines, and demand for correction or warning is imposed, and rather, the demand for correction or disadvantage disposition is subject to appeal litigation. In addition, the instant guidelines are only administrative guidance demanding voluntary cooperation from the other parties inside the administrative agency, but does not cause direct changes in specific rights and obligations of a specific person.

Ultimately, the guidelines of this case cannot be deemed an administrative disposition that is subject to appeal litigation, and each lawsuit against the Defendants seeking its revocation is unlawful.

3. Conclusion

Therefore, since all of the lawsuits of this case are unlawful, it is decided to dismiss all of them. It is so decided as per Disposition.