2018Nu71863. Revocation of a rejection disposition to authorize the establishment of a university

B Educational Foundation

Attorney Kim Jong-hwan et al., Counsel for the defendant-appellant

The Minister of Education

Government Legal Service Corporation (Law Firm LLC)

Attorney Kim Jae-chul

Seoul Administrative Court Decision 2017Guhap88671 decided October 12, 2018

April 5, 2019

May 10, 2019

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant's rejection disposition against the plaintiff on June 13, 2016 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

The reasoning for this Court’s reasoning is as follows, and this Court’s reasoning is consistent with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, except for the following additional determination as to the matters for which the defendant stated in the trial:

[Supplementary Use]

○ In the first instance court of the first instance, the following first instance court's "court" is regarded as the "first instance court."

In the second judgment of the first instance court, the 12th judgment's "security of basic property for profit" is "security of basic property for profit-making."

○ 3rd of the first instance judgment, ‘for the benefit of 4th of the first instance judgment' is added to ‘for the benefit of 4th of the first instance judgment'.

○○ 8th of the first instance judgment, one of the 19th of the 19th of the 19th of the 19th of the 19th of the 1

Meanwhile, Article 23 of the Enforcement Decree of the Administrative Procedures Act provides that the regulations on legislative affairs shall apply to the pre-announcement of legislation. Article 14(1) of the Regulations on the Operation of Legislative Affairs provides that the head of an agency proposing a legislative Bill shall pre-announce the legislation in order to enact, amend, or repeal the statutes, and the head of an agency affiliated with a Ministry shall pre-announce the legislation with the approval of the head of the relevant Ministry. Article 41(4) of the Administrative Procedures Act provides that "where an important modification is made prescribed by Presidential Decree" means where the rights and obligations of the people or people's lives are added (Article 41(1)) or where it is necessary to collect opinions again due to a change in the legislative purport or main contents of the legislative bill (Article 23(2)). In addition, Article 18(1) of the former Regulations on the Operation of Legislative Affairs (amended by Presidential Decree No. 28042, May 8, 2017) provides that the head of the agency proposing a legislative bill must review the opinion submitted and present opinions.

○ The 11th of the first instance judgment, 8 to 12th of the 12th of the 8th instance judgment, is as follows.

With respect to the scope of application of Article 7(1) of the amended provision, Article 2 of the Addenda to the amended provision provides that the establishment entity which has applied for authorization for establishment or amendment of articles of incorporation of school juristic persons shall obtain authorization for establishment of school juristic persons or for establishment or operation of university without obtaining authorization for establishment of school juristic persons or for establishment or operation of university shall be governed by the previous provision (amended by Presidential Decree No. 26430, Jul. 24, 2015; hereinafter the same shall apply). Article 3 provides that the previous provision shall apply to basic property for profit of school juristic persons established at the time of the enforcement of the amended provision, while Article 2 of the Addenda to the amended provision shall be deleted, Article 3 of the Addenda to the amended provision shall be amended by Article 2 of the Addenda to the amended provision, and Article 1 of the Addenda to the amended provision shall be applied to the basic property which is established before the amended provision enters into force, while Article 2 of the Addenda to the amended provision shall be applied only to the basic property for which the school juristic person applies before the amended provision enters into force.

○○ Decision 12 pages 12 of the first instance court's 6th amendment "Article 3 of the Addenda to the Amendment" is "Article 2 and Article 3 of the Addenda to the Amendment."

Article 14 (3) of the Enforcement Decree of the same Act is "Article 23 of the Enforcement Decree of the same Act and Article 14 (3) of the Regulations on the Operation of Legislative Affairs".

○ 13 pages 14 of the judgment of the first instance court, "No. 2 of the 14th sentence" is regarded as "No. 2 A".

○ The 13th of the judgment of the court of first instance, 'the 18th of the judgment', is regarded as ‘the witness of the court of first instance'.

○ In the attached statutes of the first instance judgment, the "Enforcement Decree of the Administrative Procedures Act" and "Operational Rules of Legislative Affairs" and "Operation Rules of Legislative Affairs (amended by Presidential Decree No. 29127, Aug. 28, 2018) are as shown in the attached statutes of this judgment.

【Supplementary Decision】

As to the main provision of the amended provision, unless a pre-announcement of legislation has been made in accordance with legitimate procedures, it shall not be deemed immediately null and void on the ground that the amendment did not go through a pre-announcement of legislation under the Administrative Procedures Act, and the judgment of the court of first instance that held that all relevant provisions of the amended provision shall be null and void on the ground that it is unlawful, in view of the increase of social necessity for university restructuring due to the reduction of school age and the importance of public interest, such as ensuring students’ faithful education rights through securing basic property for profit-making purposes, etc.

However, even if an administrative act is illegal, the effect of the administrative act without permission is not denied on the ground of the defect, except where there is a reason to be deemed null and void as a result of significant and apparent defects. Although the validity of the administrative act is not the same as res judicata of the judgment, if the defect in the administrative act belonging to the objective scope of the judgment is merely a reason to revoke the administrative act, the validity of the disposition cannot be denied unless the disposition is revoked (see, e.g., Supreme Court Decision 2008Du3265, May 29, 2008). On the other hand, since there is no dispute system seeking revocation of the defective laws and regulations in Korea, it is reasonable to deem that the legislative procedure, etc. does not distinguish whether the degree of the defect is serious or obvious, and that the administrative disposition based thereon is illegal. Accordingly, the defendant's argument that the above argument that the administrative act should be compared to the legislation and the amendment regulations in the procedure should be decided in order to determine whether there is a defect in the legislative procedure.

2. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning. Since the judgment of the court of first instance is justified, the defendant's appeal is dismissed on the grounds of its merit, and it is so decided as per Disposition.

The Chief Judge of the Korean Supreme Court;

Judges Dokwon Line

Judges Sung-ju

A person shall be appointed.

A person shall be appointed.