Whether the act of excluding candidates included in the list of candidates for promotion by the method of promotion examination by the list of candidates for promotion under the Public Educational Officials Act constitutes a disposition subject to appeal litigation (affirmative)

Article 2(1)1 of the Administrative Litigation Act, Article 20(1) and (2) of the Elementary and Secondary Education Act, Article 13 and Article 14 of the Public Educational Officials Act, Article 1, Article 2(1)2, and Article 40(2) of the Regulations on Promotion of Public Educational Officials, Article 14(1) and Article 16(1) of the Decree on the Appointment of Educational Officials

Supreme Court Decision 92Nu1834 delivered on June 23, 1992

Plaintiff

Gyeonggi-do Superintendent of an Office of Education (Law Firm Down, Attorneys Don Sang-hoon et al.)

Seoul High Court Decision 2015Nu51523 decided June 3, 2016

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Whether disposal is recognized;

A. The term “disposition, etc.”, which is the subject of an appeal litigation, means the exercise or refusal of public authority, as an enforcement of law with respect to a specific fact by an administrative agency, and other corresponding administrative actions (Article 2(1)1 of the Administrative Litigation Act). Whether a certain act by an administrative agency constitutes a disposition, etc. subject to an appeal litigation cannot be determined generally and abstractly. Determination shall be based on the content and purport of relevant Acts and subordinate statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law, and the attitude of interested parties with respect to the pertinent act, etc. (see Supreme Court en banc Decision 2008Du167, Nov. 18, 2010, etc.)

Meanwhile, an appeal litigation may be filed by a person who has a legal interest in seeking the revocation or nullification of a disposition, etc. (Articles 12 and 35 of the Administrative Litigation Act), and the other party to a disadvantage disposition is recognized as standing to sue as a person who has suffered direct infringement of personal interests (see, e.g., Supreme Court Decisions 94Nu8129, Aug. 22, 1995; 2013Du27517, Oct. 29, 2015).

B. (1) According to the Elementary and Secondary Education Act, the principal takes charge of school affairs and instructs, supervises, and educate students under his/her control (Article 20(1)). The assistant principal shall assist the principal, manage school affairs, educate students, and act for the principal when the principal is unable to perform his/her duties due to unavoidable reasons (Article 20(2)). In addition, the right to promote the assistant principal is delegated to the superintendent of education (Article 33(1) of the Educational Officials Act and Article 3(5)3 of the Decree on the Appointment of Educational Officials).

(2) According to the Public Educational Officials Act, a public educational official’s promotion shall be based on his/her career rating, results of retraining, performance rating, and other capabilities that may be actually proven, as prescribed by Presidential Decree, from among the subordinate public officials engaged in the same kind of duties (Article 13). The appointment authority or appointment-recommendation authority of a public educational official shall prepare and keep a list of candidates for promotion by qualification, as prescribed by Presidential Decree, pursuant to Article 13 and Presidential Decree (Article 14(1)). When a public educational official is promoted, a public educational official shall, in principle, be promoted or recommended to be promoted up to three times the number of vacant positions in the order of priority in the list of candidates for promotion, except when he/she is promoted or recommended to be promoted (Article 14(2)).

According to the delegation, the rules for promotion of public educational officials provide that public educational officials shall make a list of candidates for promotion in the order of candidates eligible for promotion with high-ranking points (Articles 1, 2(1)2, and 40(2) and (4)), including “a person who has obtained a certificate of qualification of the principal of the same school as an assistant principal of each school,” in order to ensure fairness in personnel administration, by conducting a deliberation, career evaluation, performance evaluation, and performance evaluation for training. In the case of an assistant principal, 70 points of career evaluation, 100 points of total evaluation points, 30 points of training performance evaluation points, and 30 points of total evaluation points, respectively. In addition, according to the appointment appointment of public educational officials, when an appointment authority or appointment-recommendation authority intends to promote a public educational official (excluding a teacher of a university or a master teacher of the same school) under his/her jurisdiction, he/she shall appoint or recommend a public educational official within three times the number of candidates to be promoted in the order of high-ranking candidates list (Article 14(1).

(3) According to the provisions of such statutes, a person who has the authority to appoint public educational officials shall examine whether candidates entered in the promotional register are promoted in the order of high order among those who are within three times the number of candidates scheduled to be promoted, and accordingly, a candidate included in the promotional register shall be expected to undergo a justifiable examination from the appointment authority. However, in a case where the appointment authority, etc. voluntarily excluded the candidates included in the promotional register from the promotional, if such exclusion disposition is not considered a disposition subject to appeal, then there is no other means of appeal against this disposition. Accordingly, the act of excluding the candidates included in the promotional register from the promotional appointment examination conducted by the promotional examination method under the Public Educational Officials Act constitutes a disadvantageous disposition, which is subject to appeal (see, e.g., Supreme Court Decision 92Nu1834, Jun. 23, 1992).

However, the appointing authority may decide whether to promote the candidates included in the list of candidates for promotion by conducting a certain examination, and it does not necessarily require the appointment of specific candidates included in the list of candidates for promotion. Furthermore, since the assistant principal is in the position of assisting and vicariously executing the principal with broad authority over education in elementary and secondary schools, the appointment of assistant principal requires an evaluation as to whether a certain candidate guarantees the right of citizens to receive education more effectively and satisfies the expectations of parents and students, who are educational consumers, and has sufficient capabilities and qualities to meet the expectations of students. As can be seen, a wide range of discretion is granted to the appointing authority for promotion of public officials to the extent that it cannot be compared with the administrative disposition against the general public or disciplinary action against the public officials. Accordingly, if there is assertion and evidence that the decision to exclude the candidates included in the list of candidates for promotion is based on grounds that are reasonable without violating the relevant statutes and regulations governing the qualification of public officials, it should not be readily determined as unlawful

C. According to the reasoning of the lower judgment and the record, the following circumstances are revealed.

(1) The Plaintiff is a public educational official newly appointed as an elementary school public educational official on March 25, 1983, and is in office as an elementary school teacher within the jurisdiction of the Gyeonggi-do Office of Education.

(2) On August 31, 2007, the Plaintiff obtained a master’s degree in education at ○○○ University, and was selected as a person eligible for qualification training as an assistant principal in 2012 and received the pertinent training.

(3) From October 8, 2012 to November 23, 2011 of the same year, the Board of Audit and Inspection conducted an audit of “the actual condition of the implementation of policies on creative education”, and discovered that ○○○○ University granted degrees to 199 members, including Plaintiff, etc. through abnormal academic management, such as granting credits to the Plaintiff, etc. during the duration of lessons due to reduction classes from 2004 to 2012. The Minister of Education issued a corrective order to revoke the Plaintiff, etc.’s degree on May 23, 2013. On May 31, 2013, the Minister of Education requested the Defendant, etc. and the Superintendent of the Provincial Office of Education to suspend employment, such as promotion based on the premise of the Plaintiff’s master’s degree acquisition, qualification training, etc.

(4) Accordingly, on June 7, 2013, the Defendant notified the Plaintiff of the suspension of appointment, such as promotion premised on the Plaintiff’s master’s degree acquisition, qualification training, etc.

(5) As of January 31 of each year, the Defendant prepared a list of candidates for promotion in the order of candidates for promotion with high points added to the career, performance, and training records as of January 31, 201. The number of assistant principals of elementary schools in the jurisdiction of the Gyeonggi-do Office of Education was 110, and the Defendant’s “list of candidates for promotion of public educational officials (the assistant principal of elementary schools)” prepared on January 31, 2014 by the Plaintiff is registered as the list of candidates for promotion in order 318

(6) On March 1, 2014, the Defendant promoted 110 assistant principals of elementary schools within the jurisdiction of the Gyeonggi-do Office of Education, which did not include the Plaintiff among them.

D. Examining the foregoing facts in light of the legal principles as seen earlier, the act of 2014, excluding the Plaintiff, who was a candidate included in the promotional appointment register of assistant principal principal, in the promotion of assistant principal of an elementary school in the Gyeonggi-do Office of Education, constitutes a disposition subject to appeal litigation (hereinafter “instant exclusion disposition for promotion”). Since the Plaintiff was included in the promotional appointment register of assistant principal principal, the issue of whether there is a reason to restrict promotion to the Plaintiff ought to be determined after deliberation in the instant case.

On the other hand, the legal principles of the right to apply for the refusal disposition invoked by the court below are premised on the case where there is an application and an administrative agency's refusal disposition against it.

2. Whether the discretionary authority is deviates or abused;

A. In full view of the following circumstances, the lower court determined that there was no illegality of deviation from or abuse of discretionary authority by violating the principle of protecting trust in the disposition of exclusion from promotion of the instant case. ① As a result of the audit by the Board of Audit and Inspection, it was revealed that ○○○ University illegally granted credits and degrees to the Plaintiff, etc., and the Minister of Education issued a corrective order revoking the Plaintiff’s degree to ○○○○ University. If the Plaintiff was not used as materials for evaluating the Plaintiff’s master’s degree, the Plaintiff could not be a person eligible for assistant principal training in 2012. ② If ○○○○ University recognized the Plaintiff’s master’s degree as it is as it is, and given the Plaintiff a qualification for promotion to the Plaintiff and then promoted the Plaintiff accordingly, it is difficult to see that other teachers who obtained a master’s degree or an alternative rating points as it would have been equal and reasonable in relation to the Plaintiff or the candidates for promotion. ③ In light of the details and details of master’s degree obtained at ○○ University’s master’s degree, the Plaintiff’s right to obtain a master’s degree or trust.

B. Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted, the lower court’s determination is acceptable. In so determining, the lower court did not err by misapprehending the legal doctrine on deviation and abuse of discretionary power with respect to the promotion of assistant principal, contrary to what is alleged in

3. Conclusion

The Plaintiff’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Chang-suk (Presiding Justice)