209Nu1236 Invalidity of the Regulations on Requirements for Graduation

Kim Young-ran Mek Kim Young-gu's litigation succession, Kim Young-gu's litigation succession

H00 (87**********)*

United Kingdom of Cheongju-si 2 Dong

Attorney Jin-law*

President of Gyeongbuk-do University

Attorney Lee **

Daegu District Court Decision 2008Guhap3120 Decided June 3, 2009

February 26, 2010

March 26, 2010

1. The defendant's appeal is dismissed.

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

1. Purport of claim

Paragraph 3 and Paragraph 6 (excluding the second paragraph in Paragraph 6) are invalid, among the requirements for graduation from the Department of Economic and Trade in the ordinary university of the Gyeonggi-do, as set out by the Defendant on November 7, 2008, pursuant to the provisions on special cases concerning the graduation from the Department of Economic and Trade in the ordinary university of the ordinary university.

2. Purport of appeal

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

1. Facts of recognition;

A. The designated parties indicated in the attached list of the Plaintiffs (designated parties, hereinafter referred to as the “Plaintiffs”) and the designated parties are students attending the business economics department of the superior university.

B. On November 7, 2007, the president of the Defendant and the president of the permanent university drafted a "Agreement on the Integration of the Permanent Resident University and the Permanent Resident University" with the first priority on the integration of the permanent resident universities. The contents of the Agreement on the requirements for graduation of students who entered the permanent resident university prior to March 1, 2008, which is the date of integration, are as follows.

Article 16 (Requirements for Graduation)

(1) In principle, the school regulations and educational courses of the previous permanent university shall apply to students who entered a permanent university no later than the date of integration: Provided, That where they obtain approval for graduation referred to in Article 57 (Recognition of Qualifications for Graduation) of the School Regulations of the North Korean National University after completing the requirements for graduation referred to in the regulations of the permanent university, a degree may be granted in the name of the university in the name

C. According to Article 2 of the Addenda to the Decree on the Establishment of National Schools amended by Presidential Decree No. 20608, Feb. 14, 2008, the permanent university was integrated into the Ganbuk University on Mar. 1, 2008, the English department, administrative department, and business economics of the permanent university was abolished. The Defendant and the president of the permanent university drafted a “certificate of performance” at the compensatory level of compensation for students with respect to the above abolished students on Nov. 22, 2007, and the contents on the graduation and school movement of students are as follows.

1. In promoting the integration between the North Korean University and a permanent university, students of a department to which they move from a permanent university to a permanent university shall prepare a special provision for graduation and be granted a graduate from the name of a similar department (economic and ordinary department, administrative department, and English department) within the term of a permanent university, which is integrated into a permanent university;

2. A person who, as of March 1, 2008, has been at the time of integration, has made efforts to transfer to the same department (economic, ordinary, administrative, and English and English) of the Gyeongbuk University as a student in the course of movement to a permanent university, and thereafter has made full efforts to devise measures to manage the school affairs of students in the said department in a permanent campus.

D. After that, on December 31, 2007, the Defendant prepared a detailed implementation plan for the integration of resident universities at the North Korean University, and prepared a plan for the protection of students at the resident universities as follows.

1.7. Student Protection Scheme;

○ Students enrolled in a permanent university at the time of the consolidation shall apply school regulations in accordance with the school regulations at the time of the consolidation and the year of entry;

- It is possible to apply the school regulations of the Integrated North Korean University, if the requirements set forth in the school regulations of the Integrated North Korean University meet such requirements.

0 Special Cases concerning the graduation of students in English, business economics, and administrative department at a permanent university at the time of consolidation;

-be graduated from the name of a similar department of English, economic and trade, and administrative department (in English, economic and administrative department) at a permanent university within the duration of the university, provided that the requirements set forth in the school regulations of the permanent university are met;

Measures for permanent university temporary university students at the time of this integration

-in the case of returning to a permanent university within the duration of the university, to the relevant academic year of the university;

-be transferred to another industrial college upon expiration of its duration at the same or similar department (department) or major year of the Integrated University or at its own will;

○ Measures against the expulsion of resident universities at the time of the consolidation

- Where re-admission is made within the duration of a permanent university, it is possible to re-admission to the relevant department or relevant academic year;

-be re-admissions upon expiration of the duration to the same or similar major or academic year of the Integrated University;

E. On February 29, 2008, the Defendant amended the school regulations of the Gyeongbuk University (No. 1403, Mar. 1, 2008) for the integration with a permanent university, and stipulated a transitional measure regarding resident students, etc. in Article 2 of the Addenda to the amendment. The content is as follows.

Article 2 (Transitional Measures for Students, etc. at Superior's University)

(1) A permanent university abolished as an amendment to the Decree on the Establishment of National Schools (Presidential Decree No. 20608) shall be deemed to continue to exist until February 29, 2012, and the provisions of the previous permanent university shall apply to persons who have obtained permission for students and admission to a permanent university that entered the relevant school and the permanent university prior to the implementation of the relevant school regulations: Provided, That the provisions of the previous permanent university shall apply to students and students of a permanent university who wish to obtain the school regulations within the duration of the existing permanent university in accordance with the school regulations, and the matters related thereto shall be separately determined.

(2) A resident university who fails to graduate from a school within the duration of the university due to a justifiable reason may transfer to the same or similar department of the university in North Korea, and in such cases, a fixed number of students who have enrolled in the university shall be deemed to be determined separately.

(4) Where a person who was removed from a permanent university prior to the enforcement of this school regulation intends to be re-admission, the re-admission may be permitted in accordance with the previous provisions regarding re-admission of the permanent university within the duration of the permanent university, and after the duration of the re-admission.

F. On August 7, 2008, in accordance with the above agreement and detailed implementation plan, and the regulations of the Gyeongbuk University, the Defendant enacted the special provisions on the graduation of students residing at the Gyeongbuk University (Article 1486, hereinafter referred to as the "special provisions of this case"), and some of the contents thereof are as follows.

Article 2 (Basic Ideology) The provisions of this Article shall be the following basic spirit:

(1) Article 16 of the Written Agreement on the Integration of Gyeongbuk-Seoul Metropolitan Government (Conditions of Graduation, November 7, 2007)

(2) A detailed implementation plan for the integration of residents living in the border zone (the plan for student protection, December 31, 2007)

(4) Article 2 of the Addenda to the Decree on the Establishment of National Schools (Transitional Measures for Residents of Permanent University, February 14, 2008)

(4) Article 2 of the Addenda to the School Regulations (Transitional Measures for Students, etc. of Superior's University, February 29, 2008) of the Addenda to the relevant university.

Article 3 (Recognition of Qualifications for Graduation)

(1) Students who enter a permanent university shall, in principle, be subject to the school regulations and curriculum of the former permanent university: Provided, That where such graduates are recognized as those specified in Article 57 (Recognition of Qualifications for Graduation) of the School Regulations, a degree may be granted to the university of North Korea.

In order to obtain a degree from the same or similar departments (in English, administrative, business and economics) of a permanent university, students of the same or similar departments (in English, administrative, or economic and trade department) of a university located in North Korea shall obtain the major credits determined by the same or similar departments of the university located in North Korea, along with the requirements referred to in paragraph (2).

Article 4 (Recognition and Conferment of Degrees)

(1) Notwithstanding Article 58 of the School Regulations, where a resident university intends to graduate from a university or college on or before February 29, 2012, the following academic subjects of the university or college shall be presented:

1. A person who meets the requirements for graduation from a permanent university and who shall complete a alternative course referred to in Article 3 (2) may be granted a degree from a permanent university with a name of a university and a department at a permanent university;

2. Where three students of the three departments closed at a permanent university meet the requirements referred to in Article 3 (3), the same or similar course of study at the Gyeongbuk University may be conferred.

(2) Detailed guidelines for business affairs concerning the graduation of students from the Gyeongbuk University shall be separately established.

G. Meanwhile, on August 7, 2008, the head of the Department of Economic and Trade of the Gyeongbuk University submitted the requirements for the graduation of students from the Gyeongbuk University to the head of the Gyeongbuk University on August 7, 2008 in accordance with the instant special provisions, and the head of the Gyeongbuk University submitted them to the Defendant on the 11st of the same month. According to the requirements, a student who intends to graduate from the Gyeongbuk University as a student of the Gyeongbuk University as a student of the Gyeongbuk University should complete at least 70 credits, which are the requirements for graduation from the Gyeongbuk University, as a student of the Gyeongbuk University. Of them, the 25 credits are deemed to be substituted for the credits completed at the Gyeongbuk University, but should be separately recognized as credits, and should complete the subjects established at a department of economic and trade of the Gyeongbuk University.

H. However, since there was a request for re-consultation on the above requirements between the permanent university business economics and the faculty members, the head of the ordinary economic and trade department of the ordinary university of the Gyeongbuk-do again established the "requirements for graduation in accordance with the special provisions on the graduation of the Ministry of Economic and Trade of the Gyeongbuk-do University" (hereinafter referred to as the "requirements for graduation in this case") in its name after a resolution of the faculty council on October 20, 2008. On November 7, 2008, the above professors were given an opportunity to explain their opinions to the professors of the permanent university and then refused to attend the meeting, and then sent the final decision to the Defendant on the 10th of the same month.

(i) According to the requirements for the graduation in this case, a person who intends to graduate from a university as a superior student at a university in the ordinary course of economy among students at a permanent university shall meet the requirements for major graduation (75 degrees in major) under the school regulations of a permanent university. At least 45 credits shall complete a major subject established in the Ministry of Economic and Trade at a permanent university, and shall not duplicate a major subject completed at a permanent university (related to paragraph (3)), and shall not exceed 15% of the number of students enrolled at a permanent university when he/she files an application for a major established in the Ministry of Economic and Trade at a permanent university (related to paragraph (6)).

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1 to 7, Gap evidence 9 to 13, Gap evidence 15 and 16

thm, evidence No. 17-3, evidence No. 2-1 to 3, evidence No. 6, evidence No. 7-1,

2. Evidence No. 8-1 through 3, evidence No. 9, and entry No. 12 and No. 13, and pleadings

The purport of the whole

2. Judgment on the Defendant’s main defense

A. The defendant's assertion

The defendant asserts that the requirements for the graduation of this case are not subject to administrative litigation because of the general and abstract legal orders or administrative rules that stipulate the requirements for the recognition of the graduation qualification (major credits) for the same and similar departments of economic and trade as the university in North Korea, among the departments closed at the permanent university, the requirements for the graduation of this case do not directly change the specific rights and obligations of the people.

B. Determination

(1) If a statutory order or administrative rule has a general and abstract nature, it cannot be deemed as having the nature of disposition in itself, but if, as itself, it has the character of regulating the physical rights and obligations or legal relations of the people, without mediating any other enforcement act, it constitutes an administrative disposition which is the subject of an appeal litigation (see, e.g., Supreme Court Order 2003No23, Oct. 9, 2003).

(2) On or before March 1, 2008, the requirements for the graduation of this case are limited to the students who entered the business economics department of a permanent university. In light of the fact that the contents of the requirements for graduation, major subjects, and credits are specifically determined and applied to the above students without any involvement in any other enforcement act, and that the above students must comply with the requirements for the graduation of this case to graduate as the economic and ordinary students of a permanent university within the term of a permanent university, it is reasonable to deem the requirements for the graduation of this case as an administrative disposition that directly regulates the legal relations between the permanent university and the students and the defendant company without any other enforcement act. Accordingly, the defendant's safety defense is without merit as to whether the requirements for the graduation of this case are invalid.

A. The plaintiff's assertion

(1) Although the requirements for the graduation of this case are met by the regulations or regulations, and the defendant should be established by the resolution of the faculty council or the deliberation of the president of the faculty council, the head of the Economic and Trade Department of the Gyeongbuk-do University was enacted, and the defect is significant and apparent.

(2) The contents of the requirements for the graduation of this case are excessively inequalityd for the plaintiff and the sperm admitted to the business economics department of a permanent university. Of the requirements for the graduation of this case, paragraphs (3) and (6) (excluding the second paragraph in paragraph (6)) of the requirements for the graduation of this case are invalid due to significant and apparent defects in the form and content.

B. Determination

(1) Whether there is any defect in the establishment of the requirements for the graduation of this case

(A) According to Article 5-2(1) of the Decree on the Establishment of National Schools, universities (limited to Gangwon-do University, Gyeongbuk-do University, and Jeju-do University) shall appoint one vice-president to assist the president in the duties of the president, and shall serve as professors. According to Article 5-2(2) of the Decree on the Establishment of National Schools, the vice-president shall perform his/her duties with the authority delegated by the president for the efficient promotion of the duties of the university, as well as for the performance of his/her duties upon delegation of the president’s authority. In principle, the president’

(B) In addition, according to Article 83(1) through (4) of the School Regulations, “school regulations” may be enacted by the president of the university, the head of the autonomous major department, etc., at least eight faculty members, at least 50 faculty members, through the president of the university, the president of the university, the president of the university, the head of the university, the head of the university, the head of the university, the head of the university, and the head of the university, etc., submit a proposal for the amendment, the head of the university, etc., the head of the university, the head of the university, etc., and the head of the university, etc., the head of the university, the head of the university, the head of the university, and the head of the university, and the head of the university, the head of the university, the head of the university, and the head of the university, after deliberation by the Council.

(C) According to the above facts and relevant regulations, the requirements for the graduation of this case constitute "detailed rules which set forth the matters necessary for the implementation of school administration in detail in accordance with the special rules of this case." The fact that the Minister of Economic and Trade in the Gyeonggi-do University has established the requirements for the graduation of this case is as seen earlier, and there is no evidence to acknowledge that the defendant or the president of the professor's Council was subject to deliberation by the Superintendent of the University or the Teaching Council in accordance with the school regulations in the establishment of the requirements for the graduation of this case. Thus, the requirements for the graduation of this case are established by a person who is not authorized to enact the special rules in violation of the regulations of this case.

(D) As to this, the Defendant asserts that the enactment of Article 3(3) of the Special Cases in this case’s private provisions pertaining to major credits was delegated to the president of the Ministry of Economic and Trade, and thus, the Defendant did not follow the procedures. However, according to the Presidential Decree on the Establishment of National Schools and the above school regulations, there is no ground to delegate to the president of the Ministry of Economic and Trade, and even if it constitutes internal delegation for the convenience of business, the external person who has expressed his/her intent is still the Defendant, who is the authority to enact. However, even if it constitutes internal delegation for the convenience of business, the statement of evidence No. 17-4 is insufficient to recognize that the Defendant enacted the requirements for graduation in

(2) Whether there is any defect in the contents of the requirements for graduation of this case

(A) As examined below, the requirement for the graduation of this case is limited to the number of students residing at the university at the time of the integration and, in particular, to the number of students residing at the university at the university at the time in 30 and 4 years, to require such students to complete at least 45 additional major courses established at the university at the university at the university at the time, and to complete at least a new 45 credits from the university at the university at the university at the time of economic and trade, the aforementioned students may lose the opportunity to graduate from the university at the university at the due date (Paragraph (3) and (2) of the special provision on the implementation of the provision on the implementation of the provision on the law on the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law of the law.

(3) Whether the requirements for graduation of this case are invalid or not

(A) In order for a defective administrative disposition, etc. to be null and void as a matter of principle, it must be objectively obvious that the defect is a serious violation of an important part of the law, and in determining whether it is significant and obvious, the purpose, meaning, function, etc. of the law should be examined as a teleological perspective, and at the same time, reasonable causes should be examined as to the specificity of the specific case itself (see, e.g., Supreme Court en banc Decision 94Nu4615, Jul. 11, 1995; Supreme Court Decision 2007Du11979, Jan. 10, 208). However, if there are special circumstances that make it considerably unreasonable to deem the defective administrative disposition, etc. to be null and void as a matter of course due to the lack of special protection of a third party, it does not seriously undermine legal stability even if it is serious, but it is reasonable to deem it to be null and void even if it is not clear (see, e.g., Supreme Court Decision 2012Du16168).

(B) As seen earlier, the requirements for the graduation of this case were established without due process by a person who is not authorized to enact the Act. Of the requirements for the graduation of this case, paragraphs (3) and (6) (excluding the second paragraph (6)) of the aforementioned paragraphs are unfairly deprived of the opportunity for students in the business economics division of the existing permanent university and in particular, senior students to graduate from the Gyeongbuk University as students in the economic and trade division of the Gyeongbuk University. In light of the above, the defect in the requirements for the graduation of this case is objectively obvious that it violates the important parts of the national school establishment order, the regulations of the Gyeongbuk University, the basic spirit of the integration of the Gyeongbuk University, the basic spirit of the establishment of the Gyeongbuk University, and the purport of the enactment of the Special Rule, and it is objectively apparent that among the requirements for the graduation of this case, those parts of paragraphs (6) and (6) (excluding the second paragraph (6)) sought by the plaintiff and the designated students are null and void.

(C) Even if the above defect does not correspond to objective apparent evidence, Dondodododo. The matter arising from the establishment of the requirements for the graduation of this case in the process of the integration between the permanent university and the Gyeongbuk University is limited to all the relevant persons (such as faculty members, students, etc. including professors) of the permanent university and the Gyeongbuk University. However, even if the requirement for the graduation of this case is null and void automatically, it seems that the protection of a third party who is benefiting from this case is not particularly problematic. However, if the case for the graduation of this case is not considered null and void automatically, the plaintiff and the designated person must comply only with the requirements for the graduation of this case in order to graduate from the Gyeongbuk University. In light of this, it is reasonable to view the above as follows: (3) and (6) (excluding the second paragraph (6)) of the requirements for the graduation of this case is null and void automatically.

4. Conclusion

The judgment of the court of first instance which accepted the plaintiff's claim of this case is just, and the defendant's appeal is dismissed as without merit.

Kim Chang-soo (Presiding Judge)

Kim Jong-Ma

Park Man-ho

1. A graduate before February 2012 pursuant to the Presidential Decree on the Establishment of the National Cemetery ( February 2008) shall be subject to the application of school regulations of a permanent resident institute.

and after March 2012, the requirements for graduation or incorporation set forth by the same and similar department in the North Korean territory.

The provisions of the study are applicable.

2. Provided, That students who entered the Republic of Korea before 2012 as permanently stationed in the Republic of Korea shall graduate from the same or similar department as the Gyeongbuk University;

To meet the requirements for graduation set forth by the same department.

3. The requirements for graduation from the Department of Economic, Trade, and Commerce at the Gyeongbuk University shall be as follows:

- Requirements for major graduates (major to 75 credits) in accordance with school regulations of the resident groups, which shall meet at least 45 credits among them;

Section B. He/she shall complete the major subjects established in the Ministry of Economic and Trade in the North Korean Economic and Trade in the North Korean Economic and Trade Department.

No course of study completed shall be conducted in duplicate.

- Three subjects (9 credits) such as US economics, macroeconomic, and international economics, in the major graduation requirement (75 credits);

Designation as an essential major subject shall be an essential subject.

4. For resident students who graduated from a school on or after March 2012 due to a change in school register, etc., the National Cemetery and the Industrial Complex:

be transferred to the same or similar department in the Gyeongbuk-gu, and at this time, a letter corresponding to the requirements for graduation.

The requirements for admission shall apply.

5. Residential students who do not wish to transfer to a school after March 2012 shall be enrolled in the student guardian.

Measures shall be prepared to graduate from the department of respect.

6. Other matters.

- Taking lectures when resident students apply for a major subject established in the Ministry of Economic and Trade in the Gyeongbuk-do;

It shall not exceed 15% of the quota.

-The Ministry of Economic and Trade shall establish various major subjects in the seasonal semester for resident students;

Efforts shall be made.

Requirements for graduation from the Ministry of Economic and Trade only for the fourth-year student (to-be graduated from February 2009) stationed in the Republic of Korea

requirements for major graduations (major 75 credits) under the school regulations of the permanent resident group, which are temporarily mitigated;

shall complete at least 35 credits in the Department of Economic and Trade in the North Korean Economic and Trade;

section 3.

The Minister of Economic and Trade in the Gyeonggi-do University end.

List of Selections

(Omission)