2015Guhap61429 Action demanding revocation of a revocation of evaluation without evaluation

Schools (Branch Offices) of Gangwon Occupational Technical Specialized Schools (Branch Offices) attached to workplace skill development training corporations.

The Minister of Education

September 17, 2015

November 12, 2015

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition not to grant evaluation to the Plaintiff on January 27, 2015 is revoked.

1. Details of the disposition;

A. The Defendant may conduct the assessment and recognition of the learning courses established and operated by the vocational skills development training establishments, etc. under Article 2 subparagraph 3 of the Act on the Development of Workplace Skills of Workers (Article 3 (1) of the Act on Recognition of Credits, Etc. (hereinafter referred to as the "Recognition of Credits Act"), Article 3 subparagraph 5 of the Enforcement Decree of the Act on Recognition of Credits, Etc. (hereinafter referred to as the "Enforcement Decree of the Act on Recognition of Credits"), and recognize the credits equivalent thereto to the persons who have completed the study courses so recognized (Article 7

B. The Plaintiff is a vocational ability development training establishment under Article 2 subparag. 3 of the Act on the Development of Workplace Skills of Workers, and applied for the assessment and recognition of 20 learning courses, such as field training in social welfare, pursuant to Article 3(2) of the Act on Recognition of Credits, to the Defendant on December 2014. On January 27, 2015, the Defendant notified the Defendant that the Plaintiff cannot conduct the assessment and recognition of the said 20 learning courses by taking 86 points below 105 points (70% of the base point 150 points) in the area of operational conditions (the basic requirement, the area of operation, and the area of learning) in the assessment field (hereinafter “instant disposition”).

C. The Plaintiff filed an objection against the instant disposition with the Defendant, but was dismissed on April 1, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Defendant violated Article 20(1) of the Administrative Procedures Act, since the Defendant did not publish the allocated points by evaluation items, which are the criteria for the instant disposition.

2) Article 5(1)1 of the Enforcement Decree of the Act on Recognition of Credits provides the qualification criteria for professors and instructors as the criteria for evaluation. As such, the Defendant’s use of the percentage of full-time professors and full-time instructors, or tuition fees per hour of professors and instructors in the field of operational conditions as evaluation items is not based on the law. Moreover, it is not based on the law that the Defendant did not evaluate all of the 20 learning courses for which the Plaintiff applied for evaluation on the ground that the Plaintiff’s operational conditions fall short of the standard points. Accordingly, the instant disposition is in violation of the principle of statutory reservation.

3) When rendering the instant disposition, the Defendant revealed that the Plaintiff received less than 86 points below 105 points in the area of operational conditions, and did not disclose that the Plaintiff received certain points in the assessment items. Accordingly, the Defendant violated Article 23(1) of the Administrative Procedures Act by failing to present the grounds for the instant disposition.

4) In rendering the instant disposition, the Defendant expressed that “the result of the deliberation by the credit recognition deliberative committee on the operational conditions of the credit recognition deliberative committee.” However, according to Article 20 of the Enforcement Decree of the Act on Recognition of Credits, the instant disposition decided by the credit recognition deliberative committee merely by the deliberative body is unlawful since it was conducted by the competent authority. In addition, the instant disposition based on the results of the deliberation on the operational conditions of the credit recognition deliberative committee is unlawful, since the operational conditions are not subject

5) 1) The Plaintiff’s disposition of this case results in a big loss because it is impossible to recruit new students, and 2) In light of the fact that students in white name who want to receive credits from the Plaintiff should hear lessons in other educational institutions, the disposition of this case goes against the principle of proportionality because the disadvantages suffered by the Plaintiff and students are enormously in comparison with the public interest to be achieved by the disposition of this case

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the first argument

Article 20(1) of the Administrative Procedures Act provides that "the administrative agency shall determine and publicly announce the necessary disposition standards so that they may be in consideration of the nature of the relevant disposition." The purpose of this system is to ensure transparency and predictability in administration by preventing the arbitrary exercise of authority by the administrative agency (see Supreme Court Decision 2008Du5148, Aug. 25, 201).

Article 3(5) of the Act on Recognition of Credits provides that the contents of standards for evaluation and assessment, such as qualifications of professors and instructors necessary for evaluation and assessment, educational facilities and learning facilities, and the contents of the course of study, shall be prescribed by Presidential Decree. Article 5 of the Enforcement Decree of the Act on Recognition of Credits provides that "The qualifications of professors and instructors necessary for evaluation and assessment shall be secured, and the number of professors and instructors necessary for the operation of the relevant course of study shall be secured (Article 5(1) of the Enforcement Decree of the Act on Recognition of Credits), and detailed standards for the number of professors and instructors under Article 5(1) of the Enforcement Decree of the Act on Recognition of Credits, and other necessary matters concerning the evaluation and assessment shall be determined by Ordinance of the Ministry of Education (Article 5(2) of the Enforcement Decree of the Act on Recognition of Credits), and Article 3 of the Enforcement Rule of the Act on Recognition of Credits (hereinafter referred to as the "Enforcement Rule of the Act on Recognition of Credits") provides for detailed standards for the evaluation and assessment under Article 5 of the Enforcement Decree of the Act on Recognition of Credits.

In other words, the following circumstances revealed from the purport of the entry of the evidence No. 1 and the entire pleadings, namely, ① the Defendant: (a) around April 2014, divided the evaluation area into the basic requirements area, operational conditions, and the field of learning in the evaluation evaluation in 2014; and (b) published the Master Plan for the Assessment and Assessment of Credit Bank System in 2014 (hereinafter referred to as the “Plan”); (c) as seen earlier, as long as the Act provides the criteria for the Assessment and Assessment in the Act on Recognition of Credits and the Act on Recognition of Credits, and the Defendant explicitly published the evaluation items and the evaluation indexes, the applicant including the Plaintiff seems to have sufficiently known the criteria for the Assessment and Assessment; and (c) in light of the content of the Act on Recognition of Credits and the Plans in this case, it is difficult to see that the Defendant would arbitrarily determine and publicly announce the criteria for the assessment and Assessment. It does not constitute an unlawful act in violation of Article 20(1) of the Administrative Procedures Act.

2) Judgment on the second argument

According to the statement in Eul evidence No. 1, 10 of the plan of this case, when the defendant examines the evaluation, the evaluation field is divided into basic requirements areas, operational conditions areas, study areas, and the evaluation items (evaluation index) of operational conditions (evaluation index). The evaluation items (evaluation index) of the evaluation items (evaluation index) of the evaluation items in the field of operation conditions shall be 'Operation (safety of institution operation, appropriateness of the working conditions of professors and instructors, appropriateness of lecture evaluation)', administrative (e.g., adequacy of securing professional personnel), financial revenue (e., rationality of operating resources, rationality of operating budget), utilization of facilities (e., appropriateness of operating budget), specialization of educational and training institutions (e., efforts of education and training institution specialization, appropriateness of management plan of education and training institution quality), and if the management conditions scores are less than 70% (105 points) of the full scores of 150 points, it can be recognized that the defendant set the evaluation index of full-time instructors and instructors' working conditions of one of the evaluation index in this case as full-time instructors and instructors.

The assessment recognition system of the Act on Recognition of Credits is aimed at realizing the ideology of lifelong education and contributing to the self-realization of individuals and the development of the nation and society by granting the defendant an opportunity to obtain academic recognition and obtain a degree through recognition of credits (Article 1 and Article 2 subparag. 1 of the Act on Recognition of Credits). In addition, in light of the contents of Article 3(5) of the Act on Recognition of Credits, Article 5(2) of the Enforcement Decree of the Act on Recognition of Credits, and Article 3(3) of the Enforcement Rule of the Act on Recognition of Credits, the defendant may be delegated the authority to set detailed standards of assessment recognition and recognition and set the standards of assessment other than qualifications of professors

However, since the defendant's working conditions of professors and instructors (the ratio of full-time professors and full-time instructors and tuition fees of professors and instructors per hour) are intended to evaluate whether applicants for the evaluation and recognition have human resources to properly proceed with the course of study applied for the evaluation and recognition, it cannot be deemed that they exceeded the scope of delegation since it is necessary to consider in determining whether applicants for the evaluation and recognition have human resources to properly conduct the course of study applied for the evaluation and recognition. In addition, in light of the evaluation items and evaluation index in the area of operating conditions as seen earlier, it is necessary to evaluate whether applicants for the evaluation and recognition have human resources and physical facilities to properly conduct all the course of study for which the applicant for the evaluation and recognition applied for the evaluation and recognition. Therefore, if the operating conditions of the applicant for the evaluation and recognition fall short of the evaluation and recognition, it cannot be deemed that the determination not to conduct the evaluation and recognition exceeds the scope of delegation in accordance with the purport of the evaluation and recognition system. Therefore, the instant disposition is based on the law and therefore,

3) Determination on the third argument

In a case where it is sufficiently recognizable that a party to a disposition was made at the time of the disposition by comprehensively taking into account the details of the written disposition, relevant statutes, and the overall process, etc. up to the disposition, and where it is deemed that there was no particular hindrance to moving to an administrative remedy procedure, the disposition is not unlawful even if the grounds and reasons for the disposition are not specified in the written disposition (see Supreme Court Decision 201Du18571, Nov. 14, 2013).

The following circumstances are revealed from the entries in Gap evidence 1 and Eul evidence 1 and the purport of the whole pleadings. ① The defendant divided the items to be evaluated in the area of operation conditions into five categories, such as operation, administration, finance, utilization of facilities, characteristics of education and training institutions, etc. under the plan in this case; ② the stability of the operation of the institute; the appropriateness of multi-level evaluation; the adequacy of securing personnel in charge of Lba Bank system in administrative items; the adequacy of securing personnel in charge of Lba Bank system in financial items; the rationality of revenue composition in fiscal items; the appropriateness of the production of revenue budget; the appropriateness of the utilization of this facility in the specialized area of education and training institutions; the appropriateness of the improvement of education and training institutions in the specialized area of the education and training institutions; the appropriateness of the next 10 evaluation indexes into the evaluation index; ② the plaintiff's remaining evaluation index points in the area of operation of the institution in question (the evaluation index in this case is less than 105 square meters; the evaluation index in light of the evaluation index in this case is less than the evaluation index (the evaluation index in question).

4) Judgment on the fourth argument

According to the records in Gap evidence No. 1, the defendant may recognize the fact that the defendant stated in the letter of disposition in this case "constition of the result of deliberation by the deliberative committee on credit recognition conditions." However, in light of the fact that the nominal owner of the letter of disposition in this case is the defendant, and that the right to evaluate the course of study is the defendant under Article 3 (1) of the Act on Recognition of Credit Recognition, it is reasonable to view that the defendant issued the disposition in this case and the above phrase in the letter of disposition in this case was referred to as the result of deliberation by the deliberative committee on credit recognition in the area of operational conditions of the deliberative committee when the defendant rendered the disposition in this case. Therefore, the disposition in this case cannot be deemed to have been conducted by the deliberative committee on credit recognition, and the result of deliberation by the deliberative committee on credit recognition is merely used as reference material when the defendant conducted the disposition in this case

5) Determination on the fifth argument

The following circumstances revealed from the facts of recognition, the evidence and the purport of the entire pleadings, i.e., (i) the Act on Recognition of Credits aims to realize the ideology of lifelong education and contribute to the self-realization of individuals and the development of the nation and society by granting the persons, etc. who have completed the course of study subject to recognition of recognition and obtain a degree through recognition of credits; (ii) there is a need for strict operation of the evaluation and recognition system by prohibiting the establishment of an institution which falls short of the evaluation and recognition standards to realize the purpose of the Act on Recognition of Credits; (iii) there is no circumstance to deem that the result of the Defendant’s evaluation of the Plaintiff’s operational environment is unreasonable; and (iv) the Plaintiff cannot be deemed to have human resources and physical facilities capable of properly conducting the overall course of study subject to evaluation and recognition by obtaining 86 points much less than 105 points in the standard point in the operational environment. In light of the above, even if considering various circumstances asserted by the Plaintiff, it cannot be said that the public interest intended to be achieved through the instant disposition is less than the Plaintiff

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

The presiding judge, judges and vice-ranking

Judges Kim Yong-han

Judges Seo-chul

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.