(영문) 서울고등법원 2016.7.7. 선고 2015누68132 판결

A. On December 2014, the Plaintiff applied for the assessment and recognition of 20 learning courses, including field training in social welfare, to the Defendant pursuant to Article 3(2) of the former Act on Recognition of Credits (amended by Act No. 13229, Mar. 27, 2015; hereinafter “former Act”).

B. On January 27, 2015, the Defendant issued a disposition not to evaluate the whole course of 20 learning on the ground that the operating condition points of the assessment field (the basic requirement field, the area of operational conditions, and the area of learning) fall short of 105 points (70% of the total point of 150 points) and fall short of 105 points (the “instant disposition”).

C. The Plaintiff filed an objection against the instant disposition with the Defendant, but was dismissed on April 1, 2015.

[Ground of recognition] Facts without dispute, entry of Gap 1 and 2 evidence, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Violation of the Administrative Procedures Act

The Defendant violated Article 20(1) of the Administrative Procedures Act, since the Defendant did not set or publicly announce the criteria for dispositions, such as the allocation of points to each evaluation item applicable to the assessment and assessment, and thus, violated Article 20(1) of the Administrative Procedures Act. In addition, the Defendant merely stated that the Plaintiff was given 86 points in the area of operational conditions while rendering the instant disposition, and did not present the basis for calculation of the above points and the reasons for

2) Violation of the principle of statutory reservation

Article 5(1)1 of the former Enforcement Decree of the Act on Recognition of Credits (amended by Presidential Decree No. 26549, Sept. 25, 2015; hereinafter referred to as the “former Enforcement Decree of the Act”) provides the qualification standards for professors and instructors as the criteria for evaluation. Thus, it is not reasonable to deem that the Defendant’s use of the proportion of full-time professors, full-time instructors, or part-time lecturer fees per hour for professors and instructors in the area of operational conditions as evaluation items is not based on statutes. In addition, the Defendant’s absence of evaluation and evaluation of the whole of 20 learning courses for which the Plaintiff applied for evaluation and assessment on the ground that the Plaintiff’s management conditions fall short of the standard points

(iii) a disposition by an unincorporated agency;

The Defendant, while rendering the instant disposition, expressed that “the result of deliberation on the operational conditions of the credit recognition deliberative committee” was “dissipate”. According to Article 20 of the former Enforcement Decree of the Act on Recognition of Credits, the instant disposition decided by the credit recognition deliberative committee is merely an deliberative body, and is unlawful.

4) Violation of the proportionality principle

In light of the fact that the Plaintiff was unable to recruit new students due to the instant disposition, and that students in white name who want to receive credits from the Plaintiff should hear lessons in other educational institutions, etc., the instant disposition is in violation of the principle of proportionality because the disadvantages of the Plaintiff and students that would be suffered due to the instant disposition are enormous compared to the public interest to be achieved.

B. Relevant statutes

It is as shown in the attached Form.

1) Determination on the assertion of violation of the Administrative Procedures Act

A) Whether Article 20(1) of the Administrative Procedures Act is violated

Article 20(1) of the Administrative Procedures Act provides that "the administrative agency shall determine and publicly announce the necessary disposition standards in detail in light of the nature of the relevant disposition," and Article 20(2) of the same Act provides that "the public announcement of the disposition standards under paragraph (1) may not be made in cases where it is considerably difficult in light of the nature of the relevant disposition or where there are reasonable grounds that it may substantially undermine the safety and welfare of the public." The purpose of the system is to prevent the arbitrary exercise of authority by the administrative agency, thereby ensuring the transparency and predictability of administration, so long as the nature of the relevant disposition permits, the administrative agency is obliged to establish and publicly announce the disposition standards as much as possible (see Supreme Court Decision 2008Du5148, Aug. 25, 201).

Article 3(4) of the former Act on Recognition of Credits provides that qualification requirements for professors and instructors who serve as the basis for recognition of evaluation, contents of learning facilities and learning courses shall be prescribed by Presidential Decree. Article 5(1) of the former Enforcement Decree of the Act provides that "The number of professors and instructors under paragraph (1), detailed standards for the number of learning facilities, learning facilities and courses, etc., and other matters necessary for evaluation evaluation shall be prescribed by Ordinance of the Ministry of Education." Article 3(1) of the former Enforcement Rule of the Act on Recognition of Credits (amended by Ordinance of the Ministry of Education No. 75 of Oct. 20, 2015; hereinafter referred to as the "Enforcement Rule of the former Act on Recognition of Credits") provides that "the Minister of Education shall set the detailed criteria for evaluation of evaluation" in paragraph (3) above, and each subparagraph of Article 5(1) of the former Enforcement Decree of the Act provides that "the Minister of Education shall set the basic plan for evaluation of credits for 20 years prior to the Plaintiff's application for evaluation" (hereinafter referred to as "the 4th of lifelong education").

However, in light of the following circumstances acknowledged by the aforementioned evidence and the purport of the entire pleadings, it cannot be deemed that the Defendant specified and publicly announced the criteria for assessment and approval prior to the instant disposition, and such public announcement of the criteria for assessment and approval does not seem to have a considerable reason to believe that it is considerably difficult due to the nature of the instant disposition or significantly detrimental to the safety and welfare of the public.

Therefore, the instant disposition violated Article 20(1) of the Administrative Procedures Act.

(1) Even if both the former Act on Recognition of Credits, the Enforcement Decree of the same Act, the Enforcement Rule of the same Act, and the instant basic plan and the instant evaluation manual, the Plaintiff’s agency subject to evaluation and assessment, such as the Plaintiff, does not know any minimum criteria for prior evaluation and assessment. In particular, according to the instant basic plan and the instant evaluation manual, where the evaluation score of operating conditions is less than 70% (105%) out of 150, the individual score for each subject in the field of study without considering all of the 150 points, is deemed to be the most important criteria for determining whether the evaluation score of operating conditions is inappropriate for all subjects. The Defendant did not disclose not only the detailed evaluation index of operating conditions, but also the criteria for granting points to each subject of the evaluation index (e.g., the Defendant did not make any effort to make any further disclosure to the Plaintiff and the institution subject to evaluation and assessment, which did not have any more effort to make any further disclosure of the said evaluation index than the minimum ratio of the previous teachers and instructors or part-time instructors fees to pass the evaluation index.

② As such, since the specific evaluation criteria have not been published prior to the instant disposition, the Plaintiff was not able to know whether it properly satisfied the operating conditions at the time of applying for the instant evaluation and recognition, and was judged inappropriate in the area of actual operational conditions. If the Defendant had published the specific evaluation criteria in advance, the Plaintiff could have applied for the assessment and recognition by supplementing the insufficient parts, and this would rather conform to the purport of the instant evaluation and recognition system.

(3) Where it is not disclosed any allocated evaluation criteria or minimum evaluation criteria, it is not possible to guarantee transparency or predictability of a disposition related to the evaluation and assessment. Moreover, an institution subject to evaluation and assessment that does not have any information shall not be able to ex post facto verify whether it is a person subject to evaluation and assessment, and shall not cause any legal dispute like this case.

4) The Defendant asserts that, in a case where a prior announcement of the criteria for assessment recognition is made, it is consistent with the purpose of the assessment recognition system because the institution subject to assessment recognition intends to meet the minimum requirements, and thus, it does not disclose it.

However, the above problem concerns for the Defendant is to be resolved by raising the evaluation criteria to ensure that educational institutions meet the appropriate requirements, and it is not a problem that is achieved through unstableness of the agency subject to evaluation and assessment by not disclosing the evaluation criteria. Rather, the purport of the former Act is to expand opportunities for access to education for the class, which has been alienated in the field of higher education by recognizing credits that serve as the basis for recognition of academic background and obtaining a degree, to those who have completed the course of study subject to evaluation and assessment. Accordingly, the evaluation and assessment system also aims to provide high-quality education to the students in light of the fact that educational institutions are able to provide high-quality education, including human and physical facilities required by the former Act and subordinate statutes, by specifying the evaluation and assessment standards, it is more reasonable to encourage and induce the educational institutions to have facilities higher than a certain level.

⑤ According to the purport of Gap evidence and the whole argument, the defendant-affiliated National Institute for Lifelong Education, which was produced by the National Institute for Lifelong Education under the jurisdiction of the defendant, disclosed the allocated points assigned to each assessment item in the area of assessment of operational conditions in the field of assessment. The defendant, on January 6, 2016, may establish guidelines for recognition of credits, etc. and recognize the facts that specifically set the basic area of assessment. In light of this, it is not impossible for the defendant to publish the criteria for assessment assessment prior to the instant disposition.

B) Whether Article 23(1) of the Administrative Procedures Act is violated

Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall provide the basis and reasons for the disposition to the parties when rendering a disposition. This purport is to exclude the arbitrary decision of the administrative agency and allow the parties to properly cope with the administrative remedy procedure. Thus, the grounds and the degree of presentation of reasons for the disposition should be sufficiently known as to which grounds and reasons the parties were given at the time of the disposition, by comprehensively taking into account the contents of the written disposition, relevant Acts and subordinate statutes, and the overall process, etc. up to the time of the disposition, and thus, it should be sufficient to determine whether the disposition was made for any reason (see, e.g., Supreme Court Decision 2011Du18571, Nov. 14,

In light of the following circumstances acknowledged by the evidence and the purport of the entire pleadings as seen earlier, it is reasonable to deem that the instant disposition was a considerable obstacle to the Plaintiff’s moving toward the administrative remedy procedure due to the Plaintiff’s appeal, as the grounds for the instant disposition and the grounds for the disposition were not presented properly.

Therefore, the instant disposition violated Article 23(1) of the Administrative Procedures Act.

① While rendering the instant disposition, the Defendant made it clear that the Plaintiff acquired the standard points for each evaluation index in the area of operational conditions, and that the total points acquired by the Plaintiff were 86 points and did not pass through the evaluation of the conditions for operation. In addition, the Defendant did not present the method of calculating the total points, on the basis of which the Plaintiff’s specific points or points obtained by each evaluation index and whether the points were calculated based on any factual basis. In addition, the Defendant merely stated the instant disposition in its 10 evaluation indexes in the area of operational conditions, “less than the basic points,” and “not less than the basic points,” and did not present the method of calculating the total points based on each evaluation index.

If the facts underlying the disposition, specific evaluation results, and method of calculating points are not presented, the Plaintiff does not have any way to know the error, even if there was an error in the method of calculating points based on the facts mistakenly perceived by the Defendant. In particular, in addition to the application and evidentiary materials submitted by the Plaintiff, if the application and evidentiary materials are deemed basic materials for the disposition, the Plaintiff may know the grounds and reasons for the disposition only when the Defendant revealed the factual relations recognized by the Defendant.

② In addition, if the Defendant did not publish the criteria for the disposition in advance as in the instant case, the Plaintiff could not expect points that it can obtain by itself only with the former Act on Recognition of Credits, the instant basic plan, and the instant assessment manual, so the Defendant needs to present more concrete reasons and grounds for the disposition. Nevertheless, since the Defendant merely presented only the total points it acquired by the Plaintiff in the instant disposition, it is generally impossible for the Plaintiff to find out whether the points it acquired in the instant disposition are properly calculated.

③ As above, insofar as the Plaintiff cannot at all know the factual basis for the calculation of facts or points on which the instant disposition was based, it is reasonable to deem that the Plaintiff failed to properly provide an opportunity to deal with the instant disposition in a valid and appropriate manner (the Plaintiff did not directly assert the illegality of the content of the assessment, such as the factual basis or the method of calculating points, while disputing the illegality of the instant disposition in the instant lawsuit, and did not directly assert the illegality of the content of the assessment, such as the procedural defect, the principle of statutory reservation, and the principle of proportionality, and argued procedural defect or the violation of the principle of proportionality, etc., thereby disputing the illegality of the content of the instant disposition by setting the assessment points on the basis of the study based on the attendance at the Credit Bank System in 2015 and the evaluation point on the basis of the evaluation body of the fixed unit assessment. In light of this, it cannot be deemed that there was no particular obstacle to the Plaintiff

2) Sub-determination

Therefore, the instant disposition is unlawful due to the existence of such procedural defects as above, and thus, the instant disposition should be revoked without the need to further examine the remainder of the Plaintiff’s assertion.

3. Conclusion

If so, the plaintiff's claim of this case should be accepted on the ground of its reasoning, and the judgment of the court of first instance is unfair on the ground of its conclusion, and thus the disposition of this case shall be revoked.