(영문) 서울행정법원 2018.3.8. 선고 2017구합86262 판결

A. On November 23, 2017, the Plaintiff is a person who applied for the College Ability Test in 2018 at Seoul High School (Seoul Special Metropolitan City Office of Education C Examination Chief, hereinafter referred to as “the Examination Chief”).

B. In 2018, the Plaintiff selected 'Meology I' as the first choice subject of the College Ability Test 4 B/S as the second choice subject, 'district science I' as the second choice subject, and applied for the 2018 college completion test as well as the 4th college completion test in the 2018 college completion test (hereinafter "the examination in this case").

C. The third supervisor D discovered the Plaintiff’s improper act on the ground that “the Plaintiff indicated the answer in the answer sheet of the WaterriI, which is the first selected subject, after the completion order of the entire examination of the instant case.”

D. On December 7, 2017, the Defendant rendered a disposition that invalidated the Plaintiff’s College Ability Test in 2018 (hereinafter “instant disposition”) based on Article 34(4) of the Higher Education Act on the same grounds as the grounds for the detection of the said fraudulent act.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 3, Eul evidence 1, 6, and 7, witness D's testimony, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

After the completion of the first-class test in the instant examination, the Plaintiff merely indicated the answer in the answer sheet of the water RiI before Ulsan (in the time of the second-class test for the earth science, which is the second-class test), and did not indicate the answer in the answer sheet of the first-class test (physical) after the completion of the entire examination of the instant case. The Plaintiff’s act does not constitute an unlawful act stipulated in Article 34(4) of the Higher Education Act or Article 7 of the Regulations on the Handling of Cheating with the College Abilitytic Ability Test. In addition, if such an act is deemed an unlawful act, it is not only a demand for an act without possibility of expectation to the examinee, but it is also an unlawful act, and thus, it is in violation of the principle of equity. Accordingly, the instant disposition is unlawful.

B. Determination

1) Relevant provisions

Article 34 (3) of the Higher Education Act provides that "the Minister of Education may conduct a test prescribed by Presidential Decree to utilize it as admission screening data", and Article 34 (4) of the same Act provides that "the examination of a person who commits an unlawful act in the test under paragraph (3) of the same Article shall be null and void, and the qualification for taking the test shall be suspended for one year following the year in which the date of the examination falls: Provided, That the qualification for taking the test shall not be suspended for a person who commits an minor unlawful act prescribed by the Minister of Education, such as holding or bringing in prohibited goods for fair management of the test, or failing to comply with the instructions of the supervisor." Article 35 of the Enforcement Decree of the Higher Education Act provides

On the other hand, Article 7, Paragraph 6 of the Regulations on Handling of Cheaterstic Ability Test (No. 155 of the Education Department Directive) provides that "a person who prepares a continuous answer sheet even after the completion of the examination shall be deemed to be a person who commits an unlawful act."

(ii) the facts of recognition

The following facts may be recognized by adding the whole purport of the pleadings to the statements in the evidence Nos. 1, 2, 6, and 7, and witness D's testimony:

① After the completion of the examination in this case, D prepared a Cheating report stating that “the Plaintiff was a public disturbance after the entire order for completion of the examination in this case,” and indicated as “the violation of the procedure for the examination in the area of the fourth scopic investigation” as the type of the Plaintiff’s unlawful act.

② After the completion of the examination in this case, the Plaintiff prepared a writing of Cheating with the content that “The 20th text of the first selection subject (physical), which was a public disturbance, was shown next to the Plaintiff after indicating the answer in the answer sheet at the headquarters of the instant test site (district scientific 1) and, i.e., indicating the answer sheet.”

③ On December 14, 2017, D: (a) at the time of the instant test, the entire age of the instant test was called “to walk gate,” “to walk gate,” and “to walk gate, I will walk gate.” (b) At the time, the Plaintiff, who was seated on the front of the instant test, was able to walk gate. However, even after the completion of the entire test, she was present at the Plaintiff’s witness to indicate gate in the last sentence of the answer sheet in the first selective test, and prepared a written statement stating that “I will not have any indication of the answer sheet to the Plaintiff.”

④ On December 14, 2017, the first supervisor E prepared a written statement stating that “D, after the completion of the entire examination of this case, it was stated that “if it was made, it is necessary to write out the answer” before the student, the entire order of the examination of this case.”

(5) D was present in this court as a witness and supervised the College College Ability Test so far seven times, and it was probnized for itself to detect for the first time. Although it was said that the entire order of the examination of this case would cause penture to the examinees, she continued to have the pent, and she changed the Plaintiff with several stories that the Plaintiff would have caused the penture to the Plaintiff. However, the Plaintiff expressed the answer in the last sentence of the part (the first selected part) of the Party A’s answer, and she said that “I am on the 1st answer? If I am on the 4th answer, I am on the 4th answer? I am on the 1st answer, and am on the 4th answer, I am on the 4th answer to the Plaintiff’s answer. I am on the 4th answer to the Plaintiff’s answer to the examination of this case.

3) Specific determination

A) The following circumstances revealed through the above facts and the fact that D consistently stated that "from the date of detection of the plaintiff's improper act to the date of this court," the plaintiff stated that "from the date of completion of the entire examination of this case to the date of this court, the plaintiff indicated his answer in the answer of the waterriI, which is the first selection subject, after the entire examination of this case," ② The first supervisor E of the examination of this case stated that "D should not prepare the answer before one student after the entire completion order of the examination of this case," and stated that "the violation of the procedure of inquiry into the area of the fourth regular trial" as the type of the plaintiff's improper act. However, it appears that D is difficult for the plaintiff to give the meaning of the indication in light of the plaintiff's improper act prepared in the above detailed examination report of this case, ④ The plaintiff's answer that "D should not prepare the answer before the whole examination of this case after the completion of the examination of this case."

B) Article 7 Subparag. 6 of the Regulations on Handling of Cheaterstic Ability Test Cheating stipulates that “the act of preparing a continuous answer sheet even after the completion of the examination” as an unlawful act. In addition, preparing a answer sheet after the completion of the examination constitutes an act that undermines the fairness of the examination by applying for the examination exceeding the time of the examination set at the same level as the whole, and it is clear that the examination constitutes an unlawful act.

In addition, deeming this as an illegal act cannot be viewed as demanding the examinee to do an act that has no possibility of expectation.

Furthermore, even though some examinees' above actions may not be discovered in the reality of supervision of the Collegetic Ability Test, it is not possible to demand an illegal equality under the rule of law. Therefore, deeming the plaintiff's above act as an improper act does not constitute a violation of the principle of equity.

C) The instant disposition is unlawful and lawful without any unlawful ground alleged by the Plaintiff.

Conclusion

Since the claim of this case cannot be accepted, it is dismissed, and it is so decided as per Disposition.