In a case where Eul University's medical department established and operated a school foundation Gap entrusted education for practical training to another hospital other than the hospital affiliated to the university, but the Minister of Education issued a corrective order to suspend student recruitment for the reason that education for practical training was performed poorly, and then the Minister of Education suspended student recruitment for the school foundation Gap, the case holding that the corrective order was unlawful and the disposition to succeed to the defects was unlawful, since it did not violate the "education-related Acts and subordinate statutes" under Article 60 (1) of the Higher Education Act.

The case holding that Article 4 (2) 3 of the Regulations on the Establishment and Operation of Universities and Colleges (the proviso to Article 4 (2) 3 of the Higher Education Act), in case where: (a) the Minister of Education entrusted the practical training to another hospital which is not an affiliated hospital of the university; (b) the Minister of Education; (c) the Minister issued a corrective order pursuant to the proviso to Article 4 (2) 3 of the Regulations on the Establishment and Operation of Universities and Colleges on the ground that the practical training did not meet the evaluation index; and (d) the Minister violated the proviso to Article 4 (1) of the Higher Education Act on the ground that the practical training did not meet the evaluation index; (b) the proviso to Article 4 (2) of the Regulations on the Establishment and Operation of Universities and Colleges (the proviso to Article 4 (2) of the Regulations on the Establishment and Operation of Universities and Colleges) and the Minister of Education did not comply with the proviso to Article 60 (2) 3 of the Higher Education Act on the ground that the university at which medical colleges, etc. are established, directly or entrusted with the standards without interference.

Article 60(1) of the Higher Education Act, Article 4(2)3(a) and Article 10(2) of the Regulations on the Establishment and Operation of Universities and Colleges

School Foundation ○ Private Teaching Institute (LLC, Kim & Lee LLC, Attorneys Park Sang-soo et al., Counsel for the defendant-appellant)

(2) The Minister of Education (Attorney Kim Jong-tae et al., Counsel for the plaintiff-appellant)

October 8, 2014

1. On September 2, 2014, the Defendant’s disposition of suspending the recruitment of 100% of the fixed number of admission by medical department of ○○ University for the Plaintiff on September 2, 2015 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a school juristic person that establishes and operates ○ University pursuant to Article 2(2) of the Private School Act. The Plaintiff’s ○ University, which is managed by the Plaintiff, has a department of medical science. A university that has a department of medical science, a department of medical science, or a department of medical science (hereinafter “medical science”) must directly establish an affiliated hospital meeting the standards for designation of an internship training hospital under Article 7(1) of the Regulations on the Establishment, Operation, etc. of the University, pursuant to the proviso of Article 4(2)3(a) of the Regulations on the Establishment, Operation, etc. of the University, or conduct training by entrustment to a hospital that satisfies the said standards.

B. The medical department of ○○ University had been providing practical training at ○ University Hospital affiliated with the medical department. However, on November 23, 2011, the Minister of Health and Welfare rendered a disposition revoking the designation of a training hospital by deeming that the instant △ Hospital failed to meet the standards for designation of a training hospital prescribed in the Regulations on Training and Qualification Recognition, etc. of Medical Specialists. The Plaintiff filed a lawsuit against the Minister of Health and Welfare (Seoul Administrative Court 201Guhap41519) seeking revocation of the said disposition, but the judgment dismissing the Plaintiff’s claim on July 19, 2012 was sentenced to the Seoul High Court (Seoul Administrative Court 2012Nu23671) and the Plaintiff’s appeal (Supreme Court 2013Du68555) were dismissed, and the judgment of the court below became final and conclusive on June 18, 2013.

C. On January 22, 2013, the ○ University concluded an agreement on clinical Education of Medical Universities with the content that ○○ University would entrust the education on clinical education with a medical department’s department’s clinical education with a pre-Korean medical department’s pre-Korean medical department’s pre-Korean medicine department.

D. From March 2014, the Defendant: (a) conducted an evaluation of whether the training course is properly provided with practical training to medical colleges other than the hospital affiliated with the university, and (b) conducted the field evaluation from April 22, 2014 to the next day with respect to the Jeonju Hospital, a hospital entrusted with practical training with the ○ University.

E. On June 30, 2014, the Defendant issued a corrective order pursuant to Article 60(1) of the Higher Education Act (hereinafter “instant corrective order”) to the Plaintiff on the ground that the instant field assessment was conducted in bad faith at medical colleges, and that the result was sent by July 29, 2014.

F. Accordingly, on July 29, 2014, the Plaintiff submitted a report on the performance of corrective measures to the Defendant, and on August 6, 2014, upon the Defendant’s request for additional submission of data, submitted the data on the 8th of the same month.

G. However, on August 13, 2014, deeming that the Plaintiff still failed to comply with the instant corrective order, the Defendant given the Plaintiff an opportunity to present his/her opinion on “○○ University’s medical science department and 100% suspension of recruitment of 100% of the fixed number of admission in 2015.” On September 2, 2014, the Defendant issued the Plaintiff a disposition to suspend recruitment of 100% of the fixed number of admission in 2015 (hereinafter “instant disposition”).

[Ground of recognition] In without dispute, Gap evidence 1-1, Gap evidence 2-1, Gap evidence 3-1, Gap evidence 4-1, Gap evidence 5-1, Gap evidence 6-1, Gap evidence 7-1, Gap evidence 9-1, Eul evidence 4-1, Eul evidence 4-2, and the purport of the whole pleadings, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The illegality of the instant disposition due to the succession of defects in the instant corrective order

A) The instant corrective order is unlawful for the following reasons.

(1) The Defendant did not state the pertinent disposition-based statute while issuing the instant corrective order. This is unlawful as a disposition contrary to Article 23(1) of the Administrative Procedures Act.

(2) The Defendant issued the instant corrective order to assess whether the training course at medical colleges meets the proviso to Article 4(2)3 of the Regulations on the Establishment and Operation of the University. After setting up an independent evaluation index, on the ground that the medical department of ○○ University failed to meet the above evaluation index and thus violated the proviso to Article 4(2)3 of the Regulations on the Establishment and Operation of the University. However, the proviso to Article 4(2)3 of the Regulations on the Establishment and Operation of the University only requires medical colleges to conduct the training at a hospital meeting the proviso to Article 4(2)3 (a) of the above Regulations. As such, since the evaluation index that served as the basis for the instant corrective order does not exist, it is unlawful as a corrective order issued based on the above evaluation index and a disposition contrary to the principle of legal reservation.

(3) Furthermore, the Jeonju-gu Hospital is a hospital that meets the criteria prescribed in Article 4(2)3 proviso (a) of the Regulations on the Establishment and Operation of the University. Therefore, the instant corrective order should be revoked as it is issued on a different premise, inasmuch as the instant provision on practical training in the medical department of ○○ University complies with the proviso to Article 4(2)3 of the Regulations on the Establishment and Operation of the University.

B) The instant corrective order and the instant disposition are dispositions carried out in a series of phases, and the defects of the instant corrective order are deemed to be succeeded to the instant disposition. Ultimately, the instant disposition is unlawful.

2) An inherent defect in the instant disposition

A) The Plaintiff fully implemented the matters pointed out in the instant corrective order. Therefore, the instant disposition, based on the premise that the instant corrective order was not implemented, was unlawful.

B) As such, upon the Plaintiff’s implementation of the instant corrective order, the Defendant issued the instant disposition on the ground that there was an unlawful act that was not pointed out in the instant corrective order. In order to take measures such as the suspension of student recruitment pursuant to Article 60(2) of the Higher Education Act, the corrective order on unlawful matters should be issued and the implementation thereof should not be carried out. As such, the instant disposition was unlawful since the corrective order was not issued regarding unlawful matters on which the instant disposition was based.

C) Although the Defendant was subject to the instant disposition pursuant to Article 71-2 [Attachment 4] of the Enforcement Decree of the Higher Education Act, there are no individual items that can be applied to the Plaintiff on the individual criteria of attached Table 4 [Attachment 4] 2]. Ultimately, the instant disposition is unlawful as it is a disposition without legal basis.

D) Even if the Defendant’s application of the above [Attachment 4] 2. Item (v) by analogy pursuant to Article 71-2 [Attachment 4] of the Enforcement Decree of the Higher Education Act’s Article 71-2 [Attachment 4] 1. F., the Defendant’s application of the above [Attachment 4]’s individual criteria to the Plaintiff, there are sufficient grounds for mitigation to the Plaintiff, the instant disposition that applied

B. Relevant statutes

[Attachment] The entry is as follows.

C. Determination

1) Illegality of the instant corrective order

A) Article 60(1) of the Higher Education Act, which served as the basis for the instant corrective order, provides that a corrective order may be issued where “a school violates education-related Acts and subordinate statutes, or orders or school regulations thereunder, with respect to facilities, equipment, classes, school affairs, and other matters.” The Defendant asserts that the instant corrective order was issued pursuant to Article 60 of the Higher Education Act, by failing to meet Article 4(2)3 proviso (a) of the Regulations on the Establishment and Operation of Universities and Colleges, for practical training in the medical department of ○○ University, and accordingly failing to comply with the requirements under Article 4(2)3 proviso (a) of the same Act. Ultimately, in order to examine the legitimacy of the instant corrective order, it is necessary to examine whether the instant practical training in the medical department of ○○ University meets the requirements under Article 4(2)3 proviso (a) of the Regulations on the Establishment and Operation of Universities and Colleges.

B) Facts of recognition

(1) As of November 20, 2013, Article 10(2) of the Regulations on the Establishment and Operation of Universities, the Defendant was able to hear the opinions of the relevant institutions or organizations when evaluating whether the requirements of affiliated hospitals under the proviso of Article 4(2)3 of the Regulations on the Establishment and Operation of Universities are met in relation to the practical training of medical colleges.

(2) Accordingly, the Defendant organized an evaluation group consisting of 7 members, including two recommended by the Ministry of Education, 1 person recommended by the Ministry of Health and Welfare, 1 person recommended by the Korea Institute of Medical Education, 1 person recommended by the Korea Institute of Medical Education, 1 person recommended by the Korea Institute of Medical Education, and 1 person recommended by the Korean Association of Medical Universities and Graduate Schools, and made an evaluation index of 19 items (hereinafter “the evaluation index of this case”) in order to assess whether training at medical colleges meet the proviso of Article 4(2)3 of the Regulations on the Establishment and Operation of Universities and Colleges. The details are as follows.

The Agreement between 1.1. the operation system of 4.1. 1. of the table, which is included in the table, is specifically concluded, and specific efforts are made to enforce the Agreement. 1.2. Administrative organizations of students and personnel are appointed, and administrative organizations and employees in charge of supporting the education and life of the students. 2. The designated cooperative hospital for the internship course is designated as an internship. 1. 2. 2. 2. the educational facilities for students are located within the hospital. 1. 2. 4. 2. the educational facilities for the purpose of preventing students. 1. 4. 2. 2. the educational facilities are located at least 1. 20 educational facilities for each student. 20. 2. 3. 4. 4. 2. 4. 4. 2. 2. 3. 4. 2. 3. 2. 3. 2. 20 or more of the educational facilities for the purpose of preventing and supervising the education of students.

(3) The Defendant: (a) deemed that practical training conducted by the medical department of ○ University failed to meet 15 indices among the aforesaid 19 indices; and (b) violated the proviso to Article 4(2)3 of the Regulations on the Establishment and Operation of University. Accordingly, the Defendant issued the instant corrective order to the Plaintiff to rectify matters that fall short of the above evaluation criteria based on Article 60(1) of the Higher Education Act.

[Reasons for Recognition] The entry of evidence Nos. 8 and 9 and the purport of the whole pleading

C) Determination

(1) As can be seen, the Defendant used the instant evaluation index in assessing whether the instant training provided by the medical department of ○ University meets the proviso to Article 4(2)3 of the Regulations on the Establishment and Operation of the University. However, the proviso to Article 4(2)3 of the Regulations on the Establishment and Operation of the University, claiming that the Defendant is the basis for the instant evaluation index, merely requires the university where the medical department, etc. is established, to “a subordinate hospital that meets the following standards, or a hospital that directly entrusts such training to a hospital that satisfies the following standards,” and did not delegate the establishment of such standards to the Defendant.

(2) Article 4(2)3 proviso of the Regulations on the Establishment and Operation of Universities and Colleges asserts that the Defendant may establish additional evaluation criteria to assess whether a “on-the-job training without any impediment to education” is being performed at a medical college on the grounds that the proviso of Article 4(2)3 proviso requires “on-the-job training without impediment to education.” However, the proviso of Article 4(2)3 proviso of the Regulations on the Establishment and Operation of Universities and Colleges provides that “on-the-job training shall be directly equipped with an affiliated hospital meeting the following standards or entrusted to a hospital meeting the following standards so that it may not interfere with education.” In light of the above language, the proviso of Article 4(2)3 proviso of the Regulations on the Establishment and Operation of Universities and Colleges requires that the relevant on-the-job training should be conducted at a hospital meeting the standards classified in each item, and it is difficult to interpret that the pertinent on-the-job training satisfies separate standards for the purpose of training without any impediment to education. Moreover, in light of Article 4(2)3 proviso of the Regulations on the Establishment and Operation of Universities and Colleges.

Furthermore, the proviso of Article 4(2)3 of the Regulations on the Establishment and Operation of Universities and Colleges does not have any delegation provision concerning what the content of “on-the-job training which does not interfere with education.” Accordingly, if the defendant’s assertion is received, each medical college may not anticipate what standards should be met in order to implement “on-the-job training which does not interfere with education” through laws and regulations. As such, when adopting the defendant’s interpretation on the proviso of Article 4(2)3 of the Regulations on the Establishment and Operation of Universities and Colleges, it may take measures such as restrictions on student recruitment against school juristic persons by using laws and regulations that could not anticipate the specific contents, which is difficult to accept as a result contrary to the principle of clarity of laws and regulations (the defendant asserts to the effect that it was resolved through the evaluation index of this case, but as seen earlier, the regulations on the establishment and operation of universities and colleges do not delegate the defendant with the enactment of specific standards such as the evaluation index of this case, and it cannot be deemed that the principle of clarity violates the internal guidelines of administrative agencies such as the evaluation index of this case).

The Defendant asserts to the effect that the evaluation index of this case is legally based on Article 10(2) of the Regulations on the Establishment and Operation of Universities and Colleges, which came into force on November 20, 2013. However, the above provision merely provides that the Defendant may hear the opinions of the relevant institutions or organizations when assessing whether the requirements of affiliated hospitals under the proviso to Article 4(2)3 of the Regulations on the Establishment and Operation of Universities and Colleges are met. Thus, it cannot be interpreted that the Defendant is entitled to establish additional standards, other than each proviso to Article 4(2)3 of the Regulations on the Establishment and Operation of Universities and Colleges.

Meanwhile, Article 5(1)1 of the Medical Service Act, which was amended by Act No. 11252 on February 1, 2012 and will take effect from February 2, 2017, provides that only a person who graduated from a medical college certified by an accreditation institution under Article 11-2 of the Higher Education Act and who has received a bachelor’s degree, can be qualified as a doctor. Accordingly, the Korean Institute of Medical Education is designated as an accreditation institution under Article 11-2 of the Higher Education Act around May 2014. If the foregoing revised Medical Service Act enters into force, students of a medical school who did not obtain certification from the Korean Institute of Medical Education cannot be qualified as a doctor, and the pertinent medical school cannot serve as a medical college. Under such circumstance, the Defendant’s corrective order can be justified on the ground that it satisfies the standards for accreditation of the Korean Institute of Medical Education at the time when the Korean Institute of Medical Education established the Institute of Medical Education, which is below the standards for accreditation of the Korean Institute of Medical Education, as well as the evaluation guidelines of the Korean Institute of Medical Education.

In full view of the above circumstances, if a medical school performs practical training at an affiliated hospital or an entrusted hospital meeting the standards for designation of training hospital in the internship course under Article 7(1) of the Regulations on the Training and Qualification Recognition, etc. of Medical Specialists, the relevant university shall be deemed to meet the standards required by the proviso of Article 4(2)3 of the Regulations on the Establishment and Operation of Universities and Colleges.

(3) Nevertheless, the Defendant issued a corrective order demanding the Plaintiff to satisfy the instant evaluation index by deeming that separate requirements to be satisfied with respect to practical training were derived from the phrase “on-the-job training without impeding education.” However, the evaluation index of the instant case does not violate the proviso to Article 4(2)3 of the Regulations on the Establishment and Operation of Universities, even if the Plaintiff failed to meet the evaluation index as the basis of the relevant statutes, and the instant corrective order was issued in the absence of any violation of the “education-related Acts and subordinate statutes” under Article 60(1) of the Higher Education Act. Ultimately, the instant corrective order was unlawful as it was issued against the Plaintiff, even though the Plaintiff did not violate the “education-related Acts and subordinate statutes” (the foregoing order was issued in the absence of any evidence to acknowledge that the pre-Japanese hospital was a hospital that failed to meet the standards for designating a training hospital in the training course under Article 7(1) of the Regulations on the Training and Qualification Recognition, etc. of Medical Specialists, and the Defendant does not be based on the instant corrective order).

2) Succession to defects in the instant corrective order

A) Article 60(1) of the Higher Education Act provides that if a school violates education-related Acts and subordinate statutes, the defendant may issue a corrective order to the founder, etc. of the school. Paragraph (2) of the same Article provides that if the above corrective order is not implemented within a given period, the defendant may take measures, such as suspending student recruitment, etc., against the founder, etc. of the school. Paragraph (3) of the same Article provides that where it is evident that a violation cannot be corrected or modified due to the nature of the violation, such as the termination of the violation, etc., it may take measures pursuant to

B) As can be seen, Article 60(1) of the Higher Education Act provides first the founder, etc. of a school with an opportunity to correct any violation, such as education-related Acts and subordinate statutes, and Article 60(2) provides that if the founder, etc. of a school does not correct or modify the violation, the Defendant may be forced to take measures, such as suspending the recruitment of students. If so, measures such as corrective order under Article 60(1) of the Higher Education Act and the suspension of student recruitment under Article 60(2) of the Higher Education Act are one of the legal effects of correction of the violation of education-related Acts and subordinate statutes, etc., and accordingly, it is reasonable to view that the defect of the instant corrective order is succeeded to the instant disposition (see Supreme Court Decision 93Nu8542, Jan. 25, 1994, etc.).

C) Ultimately, the defect of the instant corrective order issued even though there is no state of violation of the education-related laws and regulations stipulated under Article 60(1) of the Higher Education Act ought to be seen as succeeded to the instant disposition. As such, the instant disposition should be revoked without further examining the remainder of the Plaintiff’s assertion.

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Lee Jong-hun (Presiding Judge)