(영문) 대구지방법원 2018.10.26.선고 2018구합22038 판결

1. On July 4, 2017, the Defendant’s failure disposition issued to the Plaintiff and the pass disposition issued to C on July 4, 2017 with respect to the candidate examination for appointment of educational expert officials at elementary and middle schools (school affairs and educational researchers) in early 2017 shall be revoked.

2. Ascertainment that the Plaintiff is a successful applicant for a candidate examination for appointment of educational expert officials (school affairs, educational researchers, etc.) during the year 2017.

Reasons

1. Details of the disposition;

A. The Plaintiff served as a Korean language teacher at D High Schools and served in E High Schools since 2018.

B. On May 22, 2017, the Defendant publicly announced the “plan for screening candidates for appointment of educational expert officials at elementary, middle and high schools (school affairs and educational researchers)” in the year 2017. The main contents are as follows.

(2) The second screening method: The person who conducts the second screening method: the evaluation of general knowledge (e.g., written test), the evaluation of competence (e., written test), the second screening: the evaluation of competence (e., the evaluation of competence), the evaluation of competence (e., the evaluation of competence), and the details and methods of the second screening (e., the evaluation of competence), the evaluation of competence (i.g., the evaluation of competence), and (ii) the evaluation of capacity of preparing a draft planning (iii) the full score of 3: The evaluation of competence of preparing an education policy and event as educational expert officials; (iv) the second screening method of the educational expert official; (v) the second screening method of the educational expert official; and (v) the second screening method of the educational expert official: (v) the number of persons who have failed to pass the examination (referring to the evaluation of competence of planning); and (v) the second screening method of the first screening method of 0: 10:60 per cent of the total number of examination points; and (v) the second screening method of the second screening method of 20: 1:5:600 per day.

C. The Plaintiff (the examination number 201), C (the examination number 202), and F (the examination number 203) applied for the examination of the candidates for the appointment of educational expert officials in the Korean language division, etc. (the school inspector, the education inspector), among the above examinations (hereinafter referred to as the “instant screening”).

D. On July 4, 2017, the Defendant issued a pass disposition to C on July 4, 2017 (hereinafter referred to as “qualified disposition”), and at the same time, issued a pass disposition to the Plaintiff (hereinafter referred to as “unqualified disposition”) (hereinafter referred to as “instant disposition”).

E. On July 26, 2017, the Plaintiff appealed to the Central Administrative Appeals Commission on the instant disposition. However, on March 13, 2018, the appeal was dismissed. 【Grounds for Recognition】 The Plaintiff did not dispute, and the purport of the entire pleadings.

2. The plaintiff's assertion

A. The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

1) Of the first-day test on the second-class test, the third-party test (the planning draft and the evaluation test for the ability to utilize information; hereinafter referred to as the “instant test”) started with 13:20 and terminated at 17:20. The instant test shall be conducted by the applicant in a computer and stored the file in USB (univers bs, mobile storage devices) and also submit printed materials and USB. However, the C and F, other than the Plaintiff, made the final correction of the files stored in USB in USB after the completion of the instant test. This means that C and F completed the answer after the completion of the test. Accordingly, the said two examinations are invalid.

Therefore, the passing disposition against C in the instant disposition is unlawful.

2) The final successful applicants in the instant screening shall be determined on the basis of the highest score (430/450 out of the perfect score), which is the sum of the first screening (150 points) and second screening points (70/90 points), practical examination points (150 points), and interview evaluation points (60 points).

However, the Plaintiff did not receive any score of less than 40% of the full grade of each area, even if it is in the area of the second screening, the evaluation of basic knowledge (e.g. written test), the evaluation of competence (on-the-job test), and the interview evaluation.

Therefore, insofar as the examinations conducted by the Plaintiff, C, C, and F are null and void, the Plaintiff met the final successful candidate criteria as the highest scorer. Therefore, the failure disposition against the Plaintiff during the instant dispositions is unlawful.

B. As such, the instant disposition is unlawful, the Plaintiff is in the position of successful applicants of the instant screening.

3. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

4. Whether the instant disposition is lawful

(a) Facts of recognition;

In full view of each of the above evidence, Gap evidence Nos. 1 to 5, Eul evidence Nos. 1 to 7 (including each of the above numbers), the following facts are recognized:

1) The examination of this case was planned to be implemented from the first public notice of the instant screening to June 30, 2017 to the third :00 to 17:00 (240%) among the first 1st examination of the second archetype in the computer training room of the Education and Research Information Institute at the National Institute of Education and Research Information on June 30, 2017. However, the examination of this case started with 13:20 on the same day according to the decision of the open screening management committee due to the reasons of the time of occupation on the same day, and completed at 17:20.

2) The Defendant, for each senior president, set up only one set for public use, posted three supervisors and one management member who assists in printing out a printer, and thoroughly supervised and supervised them to prevent unlawful acts, such as preparing answers after the completion of the examination.

3) The instant examination was conducted in such a way that the applicant prepared the answer form using a computer program as a document preparation program and stored the file in the USB, linked the answer form to a designated computer at a cost of official printer 1 and printed out the answer form, and then submitted the USB and output document to the supervisor.

4) The time when the applicant, including the plaintiff, stored the last response file in the USB at the third party examination place, is as follows.

A person shall be appointed.

5) The main contents of the criteria for grading “evaluation of capability to prepare a proposal” are as follows:

A person shall be appointed.

6) In the instant examination, the Defendant distributed “information utilization clause” to the applicants, and the main contents thereof are as follows.

In the case of preparing a document, a planning proposal is prepared as a document preparation program, referring to the matters of the note and the processing conditions, and is prepared as a document preparation program (the matters of oil).1. USB prepared a "Planning Form.hwp" file in the USB, but due diligence has been made so that matters other than the processing conditions do not change.2. file files shall be stored at any time in D: d: d/DB and USB, and the files shall be stored at any time and shall be checked as to whether there is any abnormal file at the time of submission.

B. According to Article 51(2)2 of the Decree on the Examination for Appointment of Public Officials, a person who prepares an answer at the examination for appointment before or after the commencement of the examination shall be suspended or invalidated.

However, C and F applied for the examination of this case, together with the Plaintiff, stored the files of each answer 17:24 and 17:22, after the completion of the examination (17:20) in the USB, lastly in the USB. The Plaintiff asserted that C and F were the act of preparing the answer after the completion of the examination, and that C and F were illegal.

Therefore, the issue of this case is whether C, F, or F, is "an act of preparing a answer after the completion of the examination."

C. Determination on issues

In full view of the following circumstances, it is difficult to find that C and F have prepared the answer after the examination was completed, comprehensively taking into account the facts recognized as above and the purport of the entire pleadings:

1) First, “the act of storing answer files after the completion of the examination in the USB” does not constitute “the act of preparing answers after the completion of the examination” for the following reasons.

A) Article 51(2)2 of the Decree on the Examination for Appointment of Public Officials only stipulates the act of preparing the answer as an unlawful act, and does not stipulate the act of "storage" or "power" as an unlawful act.

In particular, an applicant who has committed an unlawful act pursuant to the above provision is subject to a very heavy disadvantage, such as the suspension or invalidation of the examination, so the provision on the basis of such indicative administrative disposition shall be strictly interpreted, and no interpretation shall be made without permission by analogical interpretation or final interpretation.

B) Even according to a sound common sense and social norms, the act of “preparation of the answer draft by means of a computer’s document preparation program and the act of “storage” is clearly distinguishable from the act of “storage of the answer file completed thereby to the USB.”

C) In the foregoing provision, deeming the act of preparing the answer after the completion of the examination as an unlawful act and putting the applicant at a disadvantage is due to the fact that the applicant who committed such an unlawful act has secured more time to make the answer, and thus, the examination’s answer is highly likely to be excellent in quality and quantity compared to other applicants, thereby infringing on the fairness of the examination.

However, even if the answer file was prepared on the computer within the time of the examination and stored the answer file in the USB after the completion of the examination, the level and quantity of the answer cannot affect the level and quantity of the answer, so there is no concern about the unfairness in the competition examination.

D) Even according to the “information utilization clause distributed by the Defendant to applicants prior to the instant examination,” the Defendant stated that “in preparation of a planning proposal as a document by referring to the matters of record and processing conditions,” and provided guidance by strictly distinguishing between “production of the answer” and “storage, printing, and submission of the answer draft already made.” In addition, “the subject matter” as stated in the “the preparation file shall be stored at any time in D:/DB and USB, and the file shall be confirmed at the time of submission,” and it is strictly distinguishable from “preparation of the answer draft” and “storage.”

In addition, in light of the guidance that the preparation file is to be stored from time to time in the USB, the "storage of the response file" is not an element of evaluation of ability to prepare a plan, but an element for stable operation of testing.

In addition, the guide that "the existence of any defect in the file at the time of submission" is premised on allowing the applicant to electronically handle the file, such as again storing it in the USB, unless the applicant prepares or revises the answer after the examination.

If an applicant is unable to electronically handle the answer file after the examination is completed, there is no reason to confirm whether the file is abnormal before submitting the answer file.

E) At the instant examination, the 13 applicants, including C and F, who are applicants for the Korean language test, stored the answer file in the USB during the time following the completion of the examination (the applicant for the first examination to which 12 applicants belong, and the most late time for the applicant’s storage is 17:29). As above, the Defendant explains the reasons why the applicant’s storage of the answer file in the USB after the completion of the examination as follows.

At the time of the ○○ Examination Center’s screening process, only one file is installed for official use, and each computer is established to automatically delete all the contents stored in the hard disc. However, at the time of the 2016 screening process, the applicant discovered that the file was not properly stored in the USB while the applicant was seeking to output the answer file prepared by himself/herself at the time of the 2016 screening process. The applicant re-verifications the file stored in his/her own computer drive, but the file was already removed. As such, at the time of the 2016 screening process, there was a need to minimize the damage of applicants caused by the defect of USB or electronic errors. At the time of the ○○○ Examination Committee, the Open Screening Committee established the principle that “it is impossible to prepare the answer after the completion of the Examination, but it is possible to re-examine whether the file was properly stored in the USB prior to the printing out of the answer file,” and provided guidance to the applicant who prepared the examination management process and provided guidance to the manager.

The above explanation of the defendant is consistent with the method of operation of the examination, etc. in a reasonable and generally accepted manner, and is consistent with the contents of the applicant's written answer (Evidence No. 6) and written confirmation of fact (Evidence No. 7). It is sufficiently acceptable to accept it.

F) As to this, the Plaintiff did not state the above explanation prior to the commencement of the examination. The Plaintiff asserted that there was no evidence No. 5 (Recording) as evidence.

However, the statement of No. 5 alone is insufficient to recognize the plaintiff's above assertion, and there is no other evidence to acknowledge it.

Even if the defendant did not give such an explanation to the applicants as the plaintiff's assertion, according to the "information utilization evaluation clause" distributed by the defendant to applicants prior to the examination of this case, the "preparation of the answer" and "storage" are clearly distinguishable from the "storage of the answer" and the "storage of the preparation file from time to time to time to time in USB" at the time.

Therefore, other applicants except the Plaintiff cannot be viewed as unlawful act of storing the answer file in the USB after the examination is completed.

2) Next, we examine whether C and F committed an unlawful act of substantially changing the content or form of the answer, such as preparing or revising the answer sheet, in addition to “the act of storing the answer file after the completion of the examination in the USB”, as alleged by the Plaintiff.

In full view of the following circumstances, it is difficult to recognize the Plaintiff’s allegation in light of the aforementioned evidence and the purport of the entire pleadings.

A) In principle, the burden of proving the legality of administrative disposition is an administrative agency.

However, in this case, it is clear that ① the Defendant’s pass disposition against the Plaintiff and the failure disposition against the Plaintiff were conducted in accordance with the order of high score in the final decision criteria for successful applicants, there is no dispute between the parties, and ② as seen in the above 1, it is clearly distinguishable from the “salvity of the answer draft” and the “storage.” Thus, it cannot be said that the “act of storing the answer file after the completion of the examination in the USB” cannot be deemed as the “act of preparing the answer draft.”

In such a case, it is close to social norms to prove the absence of a specific fact that “C and F continue to prepare the answer after the completion of the examination.” On the other hand, it is more easy for the Plaintiff claiming the illegality of the instant disposition to assert and prove the existence of such a specific fact. Therefore, such circumstance should be fully considered in determining whether the Plaintiff has fulfilled the burden of proof.

Therefore, the plaintiff, who asserts that there was a fraudulent act in the examination of this case, shall actively present the evidentiary materials supporting the existence of such a fact, and on the other hand, the defendant, who asserts that there was no illegal act, may prove the existence of a fraudulent act by impeachmenting the credibility of the evidence submitted by the plaintiff.

B) On this premise, the Plaintiff asserted that, on the sole basis of the fact that the last time when C and F stored their respective answer files in the USB was after the completion of the test, the Plaintiff prepared a answer after the completion of the test. In addition, the Plaintiff asserted special circumstances to deem that C and F committed an unlawful act, such as preparing or amending the answer draft after the completion of the test, or failing to submit evidence corresponding thereto.

C) On the contrary, almost all applicants have made a statement with the assent to the effect that it is practically impossible to draw up the answer due to the strict control of various supervisors after the completion of the examination.

3) Most of all, there was no objection to the fact that, at the time of the instant examination, any applicant, including the Plaintiff, committed an act of preparing a response after the completion of the examination, or there was an unlawful act in the instant examination. In addition, there was no evidence to deem that the instant examination was poorly managed and supervised except for the time of storage of the USB claimed by the Plaintiff.

On the other hand, the plaintiff was found to have stored the response file in the USB after being disqualified from the examination, but other applicants, including C, who passed the examination, were aware that they stored the response file in the USB after the examination was completed, and it seems that there was a problem immediately after the examination and that there was a dispute over the fairness of the examination.

4) Ultimately, the act of storing the answer file in the USB after the examination is completed cannot be deemed as the act of preparing a answer after the examination is completed under Article 51(2)2 of the Decree on the Examination for Appointment of Public Officials, and there is no other evidence to deem that the said act committed an unlawful act after the examination is completed.

Therefore, the defendant's pass disposition against C and the failure disposition against the plaintiff are all legitimate. Therefore, this part of the plaintiff's assertion is without merit.

5. Determination on the Plaintiff’s request for verification of successful applicants

As such, the failure disposition against the Plaintiff is legitimate, the Plaintiff is not in the status of successful applicants in the instant screening.

Therefore, there is no reason for the plaintiff's assertion on different premise.

6. Conclusion

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