2015Du38580. Requests for revocation of refusal of appointment

A person shall be appointed.

The Minister of Education

Seoul High Court Decision 2014Du67392 Decided January 21, 2015

June 19, 2018

The appeal is dismissed.

The costs of appeal are assessed against the Defendant.

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

1. The issue of whether a certain act of an administrative agency can be a subject of an appeal cannot be determined abstractly and generally. In specific cases, an administrative disposition is a law enforcement with respect to a specific fact conducted by an administrative agency as a public authority, which directly affects the rights and obligations of the people, with the mind that it is an act that directly affects the rights and obligations of the people. The decision 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 the 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 and interested parties related to the pertinent act (see 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 nullity of a disposition, etc. (Articles 12 and 35 of the Administrative Litigation Act). The other party to a disadvantage disposition is acknowledged as standing to sue as a person whose personal interest has been infringed (see, e.g., Supreme Court Decisions 94Nu8129, Aug. 22, 1995; 2013Du27517, Oct. 29, 2015).

2. (a) Article 31(4) of the Constitution of the Republic of Korea provides that “The autonomy, expertise, political neutrality of education and autonomy of university are guaranteed under the conditions as determined by the Act.” Under the Higher Education Act, a university has the president or dean (Article 14(1)), the president or dean shall exercise overall control over school affairs, supervise school personnel, and guide students (Article 15(1)), Article 24 of the Educational Officials Act shall be appointed by the President at the proposal of the Minister of Education with the recommendation of the relevant university (Article 15(1)), and the appointment recommendation committee for the appointment of the head of the university shall be established at the university (Article 2(2).” The above recommendation committee provides that “the selection of the head of the university at the recommendation committee or by the selection according to the method and procedure agreed upon by the faculty members of the relevant university,” (Article 14(3)), and that the head of the university has to appoint a candidate for the head of the university or college at least 2, and that he/she has to appoint the head of the university or institute (3).

In addition, according to the Public Educational Officials Act, certain methods of election campaigns are restricted in the election of candidates for the head of a university (Article 24-2), and in the case of direct election to recommend candidates for the head of a university, the election management should be entrusted to the Gu/Si/Gun election commission having jurisdiction over the location of the university (Article 24-3).

B. As such, the purport of the Act and subordinate statutes on public educational officials requires a university to recommend candidates for the head of a university and a recommendation committee comprised of various members of the university concerned to recommend candidates for the head of the university by making the university collect the total number of members and recommend candidates for the head of the university. It is to ensure autonomy of the university guaranteed by Article 31(4) of the Constitution by granting teachers, etc. an opportunity to participate in election campaign in an election for the head of a university. The Public Educational Officials Act limits the method of election campaign in an election for the election of the head of a university and requires the head of a university to entrust the election management to the competent election commission in the event of a direct election. However, the purpose of allowing the Minister of Education to recommend the appointment of the head of a university is to ensure fairness of election results, but the result of the fair election is to respect not only the academic members but also the appointing authority. Furthermore, the purport of recognizing the right to recommend the appointment of the head of a university is to assist the President to exercise the right of appointment of the candidate recommended by the university in a primary manner.

The exercise of the right to recommend appointment by the Minister of Education shall be conducted in accordance with the purport of such system, and the candidate of the president recommended by the relevant university will be expected to undergo a legitimate examination by the Minister of Education. However, if the Minister of Education does not recommend all or some of the candidates of multiple presidents recommended by the relevant university for arbitrary reasons, it is effective to deprive the President of the opportunity to undergo examination and appointment. Thus, if this is not considered a disposition subject to appeal litigation, there is no other way to relieve the rights infringed upon by objection or legal interests. Therefore, excluding all or part of candidates of multiple presidents recommended by the Minister of Education from the proposal for appointment by the relevant university shall be deemed a disadvantageous disposition against the excluded candidates, which constitutes an appeal litigation.

However, the Minister of Education may decide whether to recommend a candidate for the president recommended by the relevant university by conducting a certain examination, and the recommended specific candidate does not necessarily require the appointment system, and even if the Minister of Education is a candidate recommended by the Minister of Education, the President, the appointing authority, does not necessarily require the appointment of the president. Furthermore, 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 sufficient to guarantee the autonomy and expertise of the university effectively and to meet the expectations and demands of the members in the university. Public educational officials statutes only stipulate that a university recommends multiple candidates for the university, and do not have any provision to regard that a university is bound by the order determined by the Minister of Education or the President of the university. Therefore, even if the Minister of Education recommends a subordinate candidate, autonomy of the university guaranteed by the Constitution and the law is limited.

As such, the appointment of the president of a university has a wide range of discretion to the extent that it can not be compared with an administrative disposition against the general public or a disciplinary action against a public official. Therefore, if a decision to exclude a candidate recommended by the relevant university from the appointment recommendation of the president or the appointment of the president of a university does not violate the relevant statutes and regulations that prescribe the qualification of the president of a university, and if it is proved that such decision would result in a ground that is reasonable under social norms, it shall not be readily deemed unlawful

3. Review of the reasoning of the first instance judgment, which partially accepted by the lower judgment, reveals the following circumstances.

A. The Plaintiff is a professor of the pertinent university, a national university.

B. According to the “Regulations on the Selection of Candidates for the Appointment of the President of the University of this case”, the University of this case determined the Plaintiff, who obtained the highest number of votes as a result of the voting of the Committee on Recommendation of Candidates for the President of the University, as the first president candidate, and B, who obtained the highest number of votes as the Plaintiff, as the second president candidate. On May 19, 2014, the Defendant recommended the Plaintiff as the first president candidate, and B as the second president candidate.

C. On July 4, 2014, the Defendant decided not to recommend the appointment of president as the Plaintiff and B inappropriate under the title of “request for re-recommendation of candidates for president appointment” to the instant university president of the instant university. The instant university sent a document stating that “the appointment of president candidates is re-designated and recommended within a prompt time pursuant to relevant provisions, such as the Public Educational Officials Act” (hereinafter “request for re-recommendation”).

4. Examining the foregoing factual basis in light of the legal principles as seen earlier, it is reasonable to deem that the instant request for re-recommendation is a disadvantageous disposition that excludes all the candidates for appointment of president recommended by the instant university from the recommendation of president. As long as the Plaintiff is the president’s candidate recommended by the instant university, it is a matter to be determined after deliberation in this regard whether there is any ground to restrict the appointment of president to the Plaintiff, or the result of the Defendant’s examination of the qualification of president to the Plaintiff.

5. In the same purport, the lower court was justifiable to have determined that the instant request for re-recommendation was a disposal. In so doing, the lower court did not err by misapprehending the legal doctrine on the eligibility and disposition of an appeal litigation.

6. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Lee Dong-won

Justices Park Jung-hwa-hwa