The case holding that since the superintendent of education and the head of a district office of education delegated or delegated the authority to guide and supervise public-service corporations by a competent authority in light of the relevant provisions, it is deemed that the land management foundation's refusal to conduct an audit constitutes a violation of Article 19 (2) of the former Act on the Establishment and Operation of Public-Service Corporations.

Articles 14, 17, and 19(2)3 of the former Act on the Establishment and Operation of Public Interest Corporations (Amended by Act No. 8895, Mar. 14, 2008); Article 26(1)3 of the former Regulations on the Delegation and Entrustment of Administrative Authority (Amended by Act No. 18836, May 26, 2005); Article 21 of the former Local Education Autonomy Act (Amended by Act No. 8069, Dec. 20, 2006); Article 5 subparag. 10 of the former Rules on the Delegation of Administrative Authority (Amended by Act No. 653, Apr. 1, 2005)

Defendant 1 and two others

Defendants

Attorney Kim Yong-sik

Seoul Eastern District Court Decision 2007No102 Decided September 18, 2008

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to whether the competent authority has delegated or re-entrusted the authority of guidance and supervision

In full view of the relevant provisions including Articles 1, 2, 14, and 18 of the Act on the Establishment and Operation of Public Interest Corporations (amended by Act No. 8895 of March 14, 2008; hereinafter “Public Interest Corporations Act”) and Article 26 (1) 3 of the Regulations on the Delegation and Entrustment of Administrative Authority (amended by Presidential Decree No. 18836 of May 26, 2005; hereinafter “Delegation Provisions on Administrative Authority”), Article 5 (10) of the Seoul Metropolitan Office of Education Regulations on the Delegation of Administrative Authority (amended by the Educational Rules No. 653 of April 1, 2005); Article 21 of the former Local Education Autonomy Act (amended by Act No. 8069 of December 20, 2006; hereinafter “Public Interest Corporations Act”); it is reasonable to view that Defendant 2, an incorporated foundation, subject to the re-election of authority of the Seoul Metropolitan Office of Education under the Presidential Decree No. 2501, May 25, 201.

The judgment of the court below to the same purport is justifiable. The court below did not err in the misapprehension of legal principles as to the delegation or re-Delegation of the authority to direct and supervise public-service corporations.

2. As to whether the audit constitutes an “audit” under the Public Interest Corporation Act

After recognizing the facts, the court below determined that this case's request for the submission of data to the Young-dong Office of Education to the Young-gu Office of Education was made as an "audit" under Article 17 of the Public Interest Corporation Act regardless of its name. In light of the relevant Acts and subordinate statutes and the records, the court below's fact-finding and decision are just, and there is no error in the misapprehension of legal principles as to the "audit"

3. As to whether the Seoul Metropolitan City superintendent of education has no audit authority according to the re-delegation of guidance and supervision authority

In light of Article 26 (1) 3 and Article 4 of the Delegation Clause of Administrative Authority and Article 5 (10) of the Regulations on Delegation of Administrative Authority to the Superintendent of the Seoul Metropolitan Office of Education, the court below held that the Superintendent of the Seoul Special Metropolitan City Office of Education is still able to exercise the right of guidance and supervision, such as the audit of the Foundation without re-delegationing to the head of the Sungdong Office of Education, and with respect to the remaining authority reserved, and that the audit of the Office of Education of the Seoul Special Metropolitan City Office of Education of the Foundation was conducted within the scope of the reserved authority as above. In light of related Acts and subordinate statutes and the records, the judgment of the court below is just,

4. As to whether an illegal auditor lacks procedural legitimacy

Based on its reasoning, the court below determined that the audit of this case cannot be deemed unlawful merely on the ground that the Superintendent of Seoul Office of Education participated in the audit of the Army Foundation as an assistant to seek expert advice. In light of related Acts and subordinate statutes and records, the judgment of the court below is just and there is no error of law such as misunderstanding of legal principles as to audit procedure, contrary to the assertion in the grounds of appeal.

5. As to whether the act constitutes a mistake in law

Article 16 of the Criminal Act provides that an act of misunderstanding that one's act does not constitute a crime under Acts and subordinate statutes shall not be punishable only when there is a justifiable ground for misunderstanding. It does not mean a simple site of law, but it means that an act of misunderstanding that one's act does not constitute a crime, which is generally permitted by Acts and subordinate statutes, but it shall not be punishable if there is a justifiable ground for misunderstanding that one's act does not constitute a crime in his special circumstances (see Supreme Court Decision 9Do5026, Jun. 29, 2001

Based on its stated reasoning, the court below determined that the refusal of the audit of this case by the defendants was due to a mistake of law, or that there was no justifiable ground for such mistake. In light of the aforementioned legal principles and records, the judgment of the court below is just and there is no error of law such as misunderstanding of legal principles as to legal errors

6. As to whether the person is the subject of the violation of the Public Interest Corporation Act

In light of the provisions of Article 19(2)3 and (3) of the Public Interest Corporation Act, the court below held that not only the president of the Public Interest Corporation but also the defendant Kim Jong-su who is the head of the corporation shall be the subject of the violation of the Public Interest Corporation Act due to refusal to conduct an audit. In light of the relevant Acts and subordinate statutes, the judgment of the court below is just, and there is no error of law as to the subject of violation of the Public Interest Corporation Act.

Meanwhile, according to the records, the argument in the grounds of appeal that the auditor of this case violated the relevant provisions of the Framework Act on Administrative Regulation, or Article 18 of the Public Interest Corporation Act violates the principle of prohibition of comprehensive delegation of legislation is merely a new argument raised in the final appeal, and thus cannot be a legitimate ground of appeal. Furthermore, even if examining ex officio, it does not seem that there is any illegality that may affect

7. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)