[1] Purport of recognizing the right to recommend the appointment of the head of a university / Whether an act of excluding all or part of candidates for multiple presidents recommended by a university or college constitutes a disposition subject to appeal litigation (affirmative)

[2] Whether the appointment authority has a wide range of discretion with respect to the appointment of the president of a university (affirmative), and where a decision to exclude a candidate recommended by a university from the appointment recommendation or appointment of the president of a university is not contrary to the relevant statutes and regulations governing qualification for the president of a university, and is not unreasonable in light of social norms, whether such decision may be deemed unlawful (negative)

[3] Where the Minister of Education considers that a candidate is more suitable for appointment as president among candidates without any disqualification grounds, whether the proposal for appointment itself fulfills its duty of presentation of reasons under the Administrative Procedures Act (affirmative), and whether the Minister of Education is obliged to clarify the evaluation results of individual examination items or consideration factors in detail (negative)

[4] Whether a professional evaluation result of an administrative agency should be respected as much as possible, barring any special circumstance (affirmative), and the burden of proving that there are special circumstances that a deviation or abuse of discretionary power exists / Whether such a legal principle is equally applicable to a lawsuit brought by a candidate excluded from the recommendation of appointment by the President of the Ministry of Education or a candidate excluded from the appointment recommendation by the President (affirmative)

[1] The purport of recognizing the right to recommend the appointment of the head of university is to ensure that the exercise of the right to appoint the president is appropriate by examining the qualifications of the president recommended by university prior to the exercise of the president's final right to appoint the president in order to harmonize the autonomy of university and the exercise of the president's right to appoint the president.

A candidate for the president recommended by a university or college is expected to undergo a legitimate examination by the Minister of Education. If the Minister of Education does not voluntarily recommend all or some of the candidates for multiple presidents recommended by a university or college, the effect of depriving the President of an opportunity to be appointed. If this is not considered a disposition subject to appeal litigation, there is no way to remedy the infringed rights or legal interests. Therefore, an act of excluding all or part of candidates for multiple presidents recommended by the Minister of Education from a university or college shall be deemed a disadvantageous disposition against those excluded from the proposal for appointment, which is subject to appeal litigation: Provided, That where the Minister of Education appoints another candidate recommended by the President as the president by recommending the appointment of a specific candidate, excluding a specific candidate from the proposal for appointment, the candidate excluded from the proposal for appointment shall be deemed a disposition of excluding the President from the appointment of the president (Article 16(2) of the State Public Officials Act in the case of a presidential disposition, the competent Minister shall be the defendant of administrative litigation). In such

[2] A public educational official’s law only stipulates that a university recommends multiple candidates for the head of a university, and the Minister of Education or the President does not have any provision to deem that a university is bound by the order of priority set by the university. In a case where a university recommends multiple candidates, even if the Minister of Education recommends a subordinate candidate to recommend a junior candidate, the autonomy of a university guaranteeing the Constitution and the law can not be deemed restricted. The appointment of the president of a university can be deemed as having broad discretion compared to an administrative disposition against the general public or a disciplinary measure against a public official. Therefore, if a decision to exclude a candidate recommended by a university from the appointment of the president or the appointment of the president of a university is not contrary to the relevant law governing the qualification set by the head of a university, and is not unreasonable

[3] If the Minister of Education excludes a candidate from being disqualified for appointment as president and recommends another candidate to be appointed, he/she is obligated to specifically present that a candidate excluded from appointment is disqualified, such as a violation of research ethics, election fraud, and other misconduct. However, if the Minister of Education considers that a candidate is relatively more suitable among candidates without any disqualified reason, it may be difficult to evaluate the candidate’s eligibility for appointment as president by systematically assessing the candidate’s career, character, ability, and university operation plan by comprehensively taking into account various factors, such as candidate’s career, ability, university operation plan, etc. In such cases, the result of emotional evaluation that a candidate is more suitable for the president’s appointment as president itself is naturally included in the result of such evaluation that the Minister of Education requests the president’s appointment as president’s appointment as president, and thereby, the Minister of Education fulfills his/her duty of presentation of reasons under the Administrative Procedures Act. Furthermore, the Minister of Education has no obligation to clarify in detail the evaluation results

[4] Unless there are special circumstances, such as that there is a serious error in fact-finding, which is the basis of the determination, or that the determination is objectively unreasonable as it considerably loses validity under social norms, the court’s propriety should be respected as much as possible. The fact that there are special circumstances that deviate from and abused discretion should be proved by the party who asserts it in accordance with the general principle of the allocation of burden of proof.

This legal doctrine also applies to a lawsuit filed by a candidate excluded from a proposal for appointment by the Minister of Education against an exclusion from an appointment recommendation by the Minister of Education or an exclusion from an appointment by the President. If the Minister of Education explicitly states that a candidate is disqualified for the president’s appointment, he/she shall assert and prove that such a candidate erred by mistake of facts, etc. in such determination, and also assert and prove special circumstances, such as that there are grounds for disqualification for the president’s appointment by another candidate who has been appointed or has been appointed. Such assertion and proof can only be deemed unlawful. If a judgment revoking the relevant disposition becomes final and conclusive on such grounds, the Minister of Education or the President’s eligibility for appointment by re-examination of the qualification for appointment of two candidates according to the purport of a revocation judgment by the Minister

[1] Article 24 (1) of the Public Educational Officials Act, Article 2 (1) 1 of the Administrative Litigation Act / [2] Article 31 (4) of the Constitution of the Republic of Korea, Article 24 of the Public Educational Officials Act, Article 12-2 of the Decree on the Appointment of Educational Officials, Article 27 of the Administrative Litigation Act / [3] Article 24 (1) of the Public Educational Officials Act, Article 23 of the Administrative Procedures Act / [4] Article 26 of the Administrative Litigation Act / [3] Articles 26, 27 and 30 (1) of the Public Educational Officials

[4] Supreme Court Decision 87Nu861 Decided December 8, 1987 (Gong1988, 300), Supreme Court Decision 91Nu634 Decided April 24, 1992 (Gong1992, 1732), Supreme Court Decision 2004Du10432 Decided January 11, 2007, Supreme Court Decision 2013Du21120 Decided January 28, 2016 (Gong2016Sang, 368)

Plaintiff (Law Firm LLC, Attorneys Yoon In-tae et al., Counsel for plaintiff-appellant)

The Minister of Education (Law, Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2016Nu52332 decided October 13, 2016

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The term “disposition, etc.”, which is the subject of an appeal litigation, means the exercise or refusal of public authority, as an enforcement of law with respect to a specific fact by an administrative agency, and other administrative actions corresponding thereto (Article 2(1)1 of the Administrative Litigation Act). Whether an act by an administrative agency may be subject to an appeal litigation cannot be determined abstractly and generally. In a specific case, the determination should be made individually by taking into account the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law, and the attitude of the administrative agency or interested parties related to the act (see, e.g., Supreme Court en banc Decision 2008Du167, Nov.

Meanwhile, an appeal litigation may be filed by a person who has a legal interest in seeking the revocation or nullification of a disposition, etc. (Articles 12 and 35 of the Administrative Litigation Act), and the other party to a disadvantage disposition shall be deemed to have standing to sue as a person directly infringed on his/her personal interest (see Supreme Court Decisions 94Nu8129, Aug. 22, 1995; 2013Du27517, Oct. 29, 2015, etc.).

2. A. Article 31(4) of the Constitution provides that “The autonomy, specialty, and political neutrality of education, and the autonomy of university shall be guaranteed under the conditions as determined by Act.” The Higher Education Act provides that a university shall have the president or the dean (Article 14(1)), the president or the dean shall exercise overall control over school affairs, supervise affiliated school personnel, and guide students (Article 15(1)).

B. Article 24 of the Public Educational Officials Act provides that the head of a university shall appoint the president at the recommendation of the Minister of Education upon the recommendation of the relevant university (Paragraph 1), and that the head of the university shall establish a recommendation committee for appointment of the head of the university at the university for the recommendation of the appointment of the head of the university (Paragraph 2), and that the recommendation committee shall select a candidate for the head of the university at any one method among “the selection at the recommendation committee” or “the selection according to the method and procedure agreed upon by the relevant university teachers” (Paragraph 3), and that matters necessary for the organization, operation, etc. of the recommendation committee shall be delegated to the Presidential Decree (Paragraph 4). As such, Article 12-2 of the Decree on the appointment of the head of the university shall recommend a candidate for the head of the university at least 30 days prior to the expiration date of the appointment of the head of the university, and the recommendation committee shall be comprised of not less than 10 but not more than 50 members, who have contributed to the development of the university or college.

As can be seen, public educational officials laws and regulations stipulate that universities recommend candidates for the heads of universities to the Minister of Education and recommend the selection of candidates for the heads of universities to various members of universities. The reason is that universities provide teachers, etc. with opportunities to participate in the election of candidates for the heads of universities and recommend candidates for the heads of universities, thereby realizing the autonomy of universities guaranteed by the Constitution.

Meanwhile, the Public Educational Officials Act limits a certain number of election campaigns in a candidate election for the head of a university (Article 24-2), and the election management should be entrusted to the Gu/Si/Gun election commission having jurisdiction over the seat of the university (Article 24-3). This is to promote fairness in the election result first, but the election result fairly implemented should be respected as much as possible as possible.

C. The purport of recognizing the authority to recommend the appointment of the head of university is to ensure that the exercise of the authority to appoint the president is appropriate by examining the qualifications of the president recommended by university prior to the exercise of the President’s final authority to appoint the president in order to harmonize the autonomy of university and the exercise of the authority to appoint the president.

A candidate for the president recommended by a university is expected to undergo a legitimate examination by the Minister of Education. If the Minister of Education does not propose all or some of the candidates for multiple presidents recommended by a university or college, it is effective to deprive the President of an opportunity to be appointed. If this is not considered a disposition subject to appeal litigation, there is no way to relieve infringement of rights or legal interests. Therefore, an act of excluding all or part of candidates for multiple presidents recommended by a university or college shall be deemed an unfavorable disposition against those excluded from the Minister of Education, which is subject to appeal litigation: Provided, That where the Minister of Education appoints another candidate recommended by the President as the president by recommending the appointment of a specific candidate, excluding a specific candidate from the proposal for appointment, the candidate excluded from the proposal for appointment shall be deemed a disposition of excluding the appointment of the president for himself/herself by the President (Article 16(2) of the State Public Officials Act in the case of a presidential disposition). In such case, the benefit of litigation is lost separately.

D. The Minister of Education may decide on whether to recommend a candidate for the president recommended by a university or college by undergoing certain procedures, such as a certain examination, and not to recommend a specific candidate recommended. Even if the Minister of Education is a candidate recommended to recommend an appointment, the President, who is the appointing authority, does not necessarily have to appoint the president as the president. In the appointment of the president having broad authority over the education and operation of a university, evaluation is required as to whether a specific candidate has the ability and qualities adequate to ensure the autonomy and expertise of the university and to meet the expectations and needs of the members in

The Act and subordinate statutes on public educational officials only stipulate that a university recommends multiple candidates for the head of a university, and do not stipulate that the Minister of Education or the President of a university is bound by the order of precedence. In a case where a university recommends multiple candidates, the Minister of Education, even if a junior candidate is requested to recommend the appointment of a junior candidate, does not simply restrict the autonomy of a university that guarantees the Constitution and the law. The appointment of the president of a university may be deemed to have broad discretion compared to administrative disposition or disciplinary action against public officials against the general public. Therefore, if a decision to exclude a candidate recommended by a university from the appointment of the president or the appointment of the president of a university is not contrary to the relevant statutes and regulations governing the qualification of the head of a university, and is not unreasonable in light

A candidate recommended by the Minister of Education for the first and second candidates recommended by a university or college by the Minister of Education shall be disqualified for the appointment of the president, and one of them shall be deemed suitable for the appointment of the president. However, only one of them is deemed suitable for the appointment of the president, and only one of them may be deemed appropriate for the appointment of the president. If the Minister of Education exclusion a candidate from the appointment of the president and requests the appointment of another candidate, he/she is obligated to present concrete that there are disqualifications, such as research ethics, election malpractice, and other wrongful acts. However, if a candidate is deemed relatively more suitable for the appointment of a candidate among those without disqualifications, it is difficult to evaluate the candidate’s career, character, ability, and university operation plan as a result of the examination or proposal of the appointment of the president by the Minister of Education, considering all of the factors such as the candidate’s personal career, ability, and university operation plan. In this case, it is difficult for the Minister of Education to evaluate the candidate as the president itself as the president’s recommendation of the appointment of the president.

Unless there are special circumstances, such as that there is a serious error in the fact-finding that was the basis of the determination, or that the determination is objectively unreasonable as it considerably loses validity under the social norms, the court’s propriety should be respected as much as possible, barring special circumstances (see, e.g., Supreme Court Decisions 91Nu634, Apr. 24, 1992; 2004Du10432, Jan. 11, 2007; 2013Du21120, Jan. 28, 2016). The fact that there are special circumstances that a person asserts or abused discretion should prove it in accordance with the general principle of the burden of proof distribution (see, e.g., Supreme Court Decision 87Nu861, Dec. 8, 1987).

This legal doctrine also applies to a lawsuit filed by a candidate excluded from a proposal for appointment by the Minister of Education against an exclusion from an appointment recommendation by the Minister of Education or exclusion from an appointment by the President. If the Minister of Education explicitly states that a candidate is disqualified for the president’s appointment, he/she shall assert and prove that such a candidate erred by mistake of facts, etc. in such determination, and also assert and prove special circumstances, such as that there are grounds for disqualification for the president’s appointment by another candidate who has been appointed or has been appointed. Such assertion and proof can only be deemed unlawful. If a judgment revoking the relevant disposition becomes final and conclusive on such grounds, the Minister of Education or the President’s eligibility for appointment by re-examination of the qualification for appointment of two candidates according to the purport of a judgment revoking the appointment recommendation by

3. According to the reasoning of the first instance judgment cited by the lower judgment, the following circumstances are revealed.

A. The Plaintiff is a professor of ○ University, a national university.

B. Pursuant to the “Regulations on the Selection of Candidates for Appointment of the President of ○○ University”, ○ University selected the Plaintiff, who obtained the highest number of votes as a result of the president’s vote by the president’s recommendation committee, as the first president candidate, as the second president candidate. Accordingly, on August 28, 2015, ○ University recommended the Defendant as the first president candidate, and the Nonparty as the second president candidate.

C. On October 17, 2015, the Defendant recommended the Nonparty to be the president of ○ University. On October 21, 2015, the president appointed the Nonparty as the president of ○ University.

4. Examining these facts in light of the legal principles as seen earlier, the following determination is possible.

A. The Defendant’s act of recommending the appointment of a non-party candidate as the president of ○ University includes an act of excluding the Plaintiff from the proposal for appointment. This constitutes an unfavorable disposition that deprives the Plaintiff, who recommended the first order of priority, from the President, an opportunity to be appointed by the President, and constitutes an appeal litigation.

B. As a matter of course, the Defendant’s act of recommending the appointment of the Nonparty to the president of ○ University includes the result of evaluation that the Nonparty’s candidate is more suitable for the appointment of president than the Plaintiff. Thus, the Defendant cannot be deemed to have breached its duty of presentation of reason under the Administrative Procedures Act solely on the ground that the Defendant did not expressly state the result of evaluation of individual examination items or consideration factors. In this case, the Plaintiff’s objection to the exclusion of the appointment recommendation against himself/herself, where the Plaintiff asserted and proves special circumstances, such as the Plaintiff’s non-party’s non-party appointment proposal, the exclusion of the appointment recommendation against the Plaintiff can be deemed unlawful (the Defendant’s assertion and proof that the Plaintiff did not exclude the Plaintiff from the appointment recommendation, while disclosing that there was a non-party’s non-party appointment proposal, is not a ground for exclusion from the appointment recommendation to the Plaintiff). Therefore, the lower court should have deliberated whether the Plaintiff

5. Nevertheless, the lower court determined that the Defendant’s exclusion of the president’s recommendation for appointment to the Plaintiff does not constitute an internal decision-making of administrative decision-making between the Defendant and the President, which is subject to an appeal litigation. In so determining, the lower court erred by misapprehending the legal doctrine on eligibility and disposition of an appeal litigation, thereby failing to exhaust all necessary deliberations.

However, in the instant case, since the President appointed the Nonparty as the president of ○ University, the Plaintiff ought to dispute the disposition of exclusion from appointment of the president rather than the Defendant’s recommendation for appointment. Therefore, the lower court should have determined whether the Plaintiff was an administrative disposition seeking revocation of the appointment of the president after remanding the Plaintiff.

6. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)