2016Du33971 Revocation of disposition excluding the principal, assistant principal, and assistant principal promotion;

1. A;

2. B

3. C.

The Minister of Education

Seoul High Court Decision 2015Nu51479 Decided January 21, 2016

March 29, 2018

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. As to whether to recognize the disposition (ground of appeal Nos. 1 and 2)

A. The issue of whether a certain act of an administrative agency can be the 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 the public authority, which directly affects the rights and obligations of the people. In mind, 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 actual 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, the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see, e.g., Supreme Court en banc Decision 2008Du167, Nov. 18,

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). The other party to a disadvantage disposition is recognized 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);

B. (1) According to the Elementary and Secondary Education Act, the principal of a school shall take charge of school affairs, guide and supervise school personnel under his/her control and educate students (Article 20(1)). According to the Public Educational Officials Act, the principal of a school shall be appointed by the President (Article 29-2(1)), further, from among the following persons who engage in the same kind of duties, based on his/her career rating, outcomes of retraining, performance rating, and other capabilities that may be actually proven, as prescribed by Presidential Decree (Article 13). Meanwhile, the person who has the authority to appoint a public educational official or the authority to recommend appointment shall prepare and keep records according to Article 13 and the order of priority in the list of candidates for promotion (Article 14(1)); if a public educational official is to be promoted, he/she shall not, in principle, be promoted within the scope of 10 times the number of vacant positions in the order of priority in the list of candidates for promotion, or may request the person who has the authority to recommend appointment of a public educational official for promotion and appointment of the same grade.

(2) According to the above statutory provisions, a person who has the authority to appoint public educational officials shall examine whether a candidate is promoted in the order of priority among the candidates who enter a three times the number of candidates to be promoted, and accordingly, the candidate included in the list of candidates to be promoted shall have a procedural expectation from the appointing authority to have a legitimate examination. However, if a person who has the appointing authority voluntarily excluded the candidate included in the list of candidates to be promoted from promotion, such exclusion disposition does not constitute an appeal lawsuit, and there is no way to remedy the right infringed upon. Therefore, the act of excluding the candidate included in the list of candidates to be promoted from the promotion examination conducted by the promotion examination method based on the list of candidates to be promoted under the Public Educational Officials Act shall be deemed a disadvantageous disposition, which is subject to appeal litigation (see Supreme Court Decision 92Nu1834, Jun. 23, 1992, etc.).

However, the Minister of Education may conduct a certain examination on the candidates included in the list of candidates for promotion and determine whether to recommend the appointment, and the specific candidates included in the list of candidates for promotion do not necessarily require the appointment, and even if the Minister of Education is a candidate recommended to recommend the appointment, the President, who has appointment authority, does not necessarily require the appointment authority. Furthermore, in the promotion of the principal of a school having broad authority over education in the elementary and secondary schools, it is necessary to guarantee the right of a specific candidate to receive national education more effectively and to evaluate whether a specific candidate has the ability and qualities suitable to meet the expectations of parents and students, who are educational consumers, and to evaluate whether a certain number of discretion is granted to the appointment authority for promotion of public officials. As such, even if the candidates included in the list of candidates for promotion are excluded from the list of candidates for promotion, it shall not

C. Review of the reasoning and records of the lower judgment and the first instance judgment partially admitted by the lower court reveals the following circumstances.

(1) Plaintiff A and C are public educational officials serving as assistant principals of elementary schools within the jurisdiction of the Gyeonggi-do Office of Education, and Plaintiff B is public educational officials serving as assistant principals of elementary schools within the jurisdiction of the Office of Education of Jeollabuk

(2) The Plaintiffs obtained a master’s degree in education at a graduate school university, and received additional points in the evaluation, and received the pertinent training from a graduate school university as an eligible recipient of qualification training.

(3) From October 8, 2012 to November 23, 2012, the Board of Audit and Inspection audited “the actual condition of the implementation of creative education policies”, and discovered that graduate school universities granted degrees to 199 persons, including the Plaintiffs through abnormal academic management, such as granting credits in the course of lessons through reduction classes from around 2004 to around 2012. Accordingly, on May 23, 2013, the Defendant issued a corrective order to revoke the degree of the above persons to the International Graduate School University, and on May 31, 2013, requested the Mayor/Do Superintendent of the Provincial Office of Education to suspend employment, such as promotion of master’s degree, qualification training, etc., based on the premise of the acquisition of master’s degree, until the corrective measures related to the Plaintiffs are completed.

(4) As of January 31 each year, the Si/Do Superintendent of the Provincial Office of Education prepared a list of candidates in the order of candidates for promotion with high points calculated by evaluating the career, work performance, and training performance and adding them to the evaluation points. ① The number of candidates for promotion of the principal of an elementary school in the jurisdiction of the Gyeonggi-do Office of Education was 91, and the list of candidates for promotion (the principal of an elementary school) prepared by the Superintendent of the Gyeonggi-do Office of Education on January 31, 2014 was registered as the list of candidates for promotion (the principal of an elementary school) No. A, C, 49, and 175. ② The number of candidates for promotion of the principal of an elementary school in the jurisdiction of the Gyeonggi-do Office of Education was 49, and the number of candidates for promotion was 33, prepared by the Superintendent of the Provincial Office of Education on January 31, 2014.

(5) On September 1, 2014, the President promoted 91 elementary school principals and 49 elementary school principals within the jurisdiction of the Gyeonggi-do Office of Education, and the Plaintiffs were not included therein.

D. Examining the foregoing facts in light of the legal principles as seen earlier, it is reasonable to view that in the promotion of the principal of an elementary school in the jurisdiction of the Gyeonggi-do Office of Education and the Governor of the Jeollabuk-do Office of Education, the act of the president excluding the plaintiffs who were included in the promotion candidates list constitutes a disposition subject to appeal litigation (hereinafter referred to as “instant exclusion disposition for promotion”). Since the plaintiffs were persons included in the initial promotion candidates list for the principal of the school, the issue of whether there is a reason to restrict promotion to the plaintiffs should be determined after deliberation in the relevant area.

Nevertheless, the lower court determined that the presidential exclusion disposition against the Plaintiffs by deeming that the right to request the Plaintiffs to be promoted is not recognized under the laws or sound reasoning that the right to request the Plaintiffs to be promoted does not constitute a disposition subject to appeal litigation. In so determining, the lower court erred by misapprehending the legal doctrine on the eligibility and disposition subject to appeal litigation (the legal doctrine on the right to request the rejection disposition invoked by the lower court is based on what application was filed by an administrative agency and that it is premised on the administrative agency’s refusal act, and thus, is inappropriate to

2. As to whether discretionary authority is deviates or abused (Ground of appeal No. 3)

A. The lower court determined as follows: (a) as a result of the audit by the Board of Audit and Inspection, it was clearly revealed that the I graduate school curriculum has illegally granted credits and degrees to the Plaintiffs; (b) the Minister of Education issued a corrective order revoking the Plaintiffs’ degrees to the I graduate school curriculum; (c) the Plaintiffs could not be employed as evaluation data; and (d) the Plaintiffs could not be employed as evaluation data; (b) if the Plaintiffs recognized the Plaintiffs’ master’s degree as it is and granted promotion eligibility to the Plaintiffs; and (c) if the Plaintiffs are promoted, it is difficult for other teachers who have acquired or replaced the master’s degree curriculum in a normal way, or other teachers who have acquired the assessed points that can be considered as having equity and rationality in relation to the promotion; (iii) in light of the details of the master’s degree of master’s degree obtained from the I graduate school curriculum curriculum and the completion of master’s degree program, the Plaintiffs could sufficiently be found to have been responsible for the acquisition or submission of master’s degree of master’s degree by any abnormal method; and (iv) the Plaintiffs’ demand for promotion and reasonableness of duties and the level of autonomy and rationality, etc.

B. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court’s determination is acceptable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on deviation and abuse of discretionary power with respect

3. Conclusion

Therefore, the lower court’s decision that dismissed the instant lawsuit on the ground that it was unlawful is erroneous, but it is evident that the instant exclusion disposition is lawful and that the Plaintiffs’ claim for revocation would be dismissed as a result of the lack of justifiable grounds. It is reasonable to dismiss the Plaintiffs’ appeal on the grounds that only the Plaintiffs’ appeal cannot be modified disadvantageously to the Plaintiffs-Appellants under the principle of prohibition of disadvantageous alteration.

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

Supreme Court Decision 200

Justices Kim Gin-young

Chief Justice Kim Jong-il

Justices Cho Jae-chul