2018 Doz. 106837 Requests for revocation of refusal of appointment

A

Law Firm Seolim, Counsel for the plaintiff-appellant

Attorney Choi Jin-young

The Minister of Education

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Kim J-young

July 17, 2019

October 2, 2019

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's refusal to recommend the appointment of the president of the Korea National University on October 11, 2018 shall be revoked.

1. Details of the instant disposition

A. The Plaintiff is a professor of the business department in the National University B (hereinafter “the University”).

B. On May 19, 2014, the instant university, following the procedures for the selection of candidates for the president appointment, recommended the Plaintiff as first and second professors as second and the Defendant, on July 4, 2014, requested the president of the pertinent university, who was not qualified as the president of the National University, to re-elect the candidates for the president appointment on the ground that both the Plaintiff and C professors are inappropriate as the president of the National University (hereinafter referred to as “preliminary disposition”).

C. On July 21, 2014, the Plaintiff filed a lawsuit against the Defendant seeking the revocation of the preceding disposition (Seoul Administrative Court 2014Guhap63473), and the Seoul Administrative Court rendered a judgment revoking the preceding disposition on September 30, 2014 on the ground that there was an error in the procedural process without giving prior notice of the preceding disposition and providing an opportunity to hear opinions, and on the grounds that the grounds for the preceding disposition were not presented. While the Defendant appealed against this, the Seoul High Court (Seoul High Court 201467392) declared that the appellate court dismissed the appeal on January 21, 2015 (Seoul High Court 2014) and the Defendant appealed against this, but the Supreme Court rendered a judgment dismissing the appeal on June 19, 2018 (Supreme Court 2015Du38580).

D. On October 11, 2018, the Defendant notified the Plaintiff that he did not recommend the appointment of the Plaintiff as the president of the university of this case for the following reasons (hereinafter “instant disposition”).

All children of your (Plaintiff) have renounced Korean nationality. In particular, South Korea renounced her nationality at the time of the occurrence of the military service duty and dolusence of military service in 2004. Moreover, although you purchased and hold farmland of a reasonable area with your spouse thickness, there is a violation of the Farmland Act because they do not actually engage in agricultural management. In addition, I were subject to the disposition of fine due to drinking driving in 2001. Meanwhile, B University was subject to the disposition of fine due to drinking driving in 201.

He released his intention to not accept the appointment of the president of He through the vote of members. Considering these points comprehensively, I decided not to recommend you because it is deemed inappropriate to appoint him as the president with broad authority on education and operation of the university and high-ranking public officials who require high level of expertise and morality.

[Reasons for Recognition] Facts without dispute, entry in Gap evidence 1, 2, 10 (including branch numbers in case of additional number), the purport of the whole pleadings

2. Summary of the plaintiff's assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

① The Plaintiff’s head and South Korea did not waive his nationality to evade military service, and the Plaintiff did not own farmland for the purpose of speculation. The Plaintiff was punished by a fine due to a drunk driving crime and was subject to amnesty in 2002, and the Plaintiff was already subject to amnesty in 2002. The Plaintiff’s submission of an intention of non-acceptance to appoint the Plaintiff as president is an illegal procedure, and the Plaintiff’s genuine will is not reflected. Thus, all of the instant disposition grounds are not legitimate.

② The Defendant had gone through the process of agreement with the members of the university of this case without any legal basis, which was lawful or lawful. The instant disposition was a deviation from and abuse of discretionary power.

3. Determination on this safety defense

A. The defendant's assertion

Since D professors were already appointed as president of the university of this case, the lawsuit of this case has no interest in the lawsuit.

B. Determination

1) Since a lawsuit seeking the cancellation of an illegal administrative disposition is a lawsuit seeking the restoration to the original state by removing an illegal state caused by the illegal disposition, and the protection and remedy of the rights and interests infringed or interfered with such disposition, the theoretical meaning of disputing the illegality of a certain administrative disposition is that there is no benefit in the lawsuit seeking the cancellation in a case where there is no practical utility or benefit to be resolved by a trial (see, e.g., Supreme Court Decisions 2014Du12284, May 12, 2016; 2013Du1638, Jun. 10, 2016).

2) In light of the above legal principles, comprehensively taking account of the overall purport of the arguments in the statement Nos. 9 through 12 of the Ministry of Health and Welfare, it is recognized that the university of this case, under the supervision of the E Election Commission on February 15, 2019, obtained the highest number of D professors among four registered candidates, and F professors became the second candidate, and the defendant recommended the appointment of D professors, who are the first candidate, as president after undergoing examination procedures, and that the president appointed D professors as the seventh National University, as the president of the 7th National University. Thus, in this case where no circumstance exists to deem that D professors as the president of the above university is invalid due to serious and apparent defects or that it is necessary to revoke the appointment of D professors as the president of the above university, and thus, even if the Plaintiff’s status as president of the university of this case is revoked, it cannot be deemed that the Plaintiff seeking the cancellation of the appointment of D professors through the above disposition of this case without the cancellation of execution or the cancellation of execution procedures.

4. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.

The presiding judge and deputy judge;

Judges Gin Jae-ology

Judge Choi Jong-Un