[1] The case holding that the term "requirements for graduation from the Department of Economic and Trade of the Gyeonggi-do University, which was established by the incorporation of a permanent university into the Gyeonggi-do University, constitute an administrative disposition subject to appeal litigation

[2] The case holding that "requirements for graduation from the Department of Economic and Trade of the Gyeonggi-do University, which was established by the incorporation of a permanent university into the North Korean University, are established contrary to the basic spirit of the integration of the North Korean University and the resident university, and its defect is objectively significant and clear and void.

[1] The case holding that the term "requirements for graduations from the Department of Economic and Trade of the Gyeonggi-do University, which was established by the incorporation of a permanent university into the Gyeonggi-do University, have the nature of directly regulating the legal relationship between the resident university's business economics and students and the president of the university, and thus constitutes an administrative disposition subject to appeal, without mediating other enforcement actions.

[2] The case holding that since a permanent university was enacted against the basic spirit of the integration of a permanent university and a permanent university, its defect is objectively significant and clear and void on the ground that the "requirements for graduation under the special provisions on the special provisions on the graduation of the Ministry of Economic and Trade at the ordinary university at the border university", which was enacted by the Minister of Economic and Trade at the border university as the president of the university without authority, and the details of the enactment are unfairly deprived of the opportunity to graduate from the former permanent university as students of the Ministry of Economic and Trade at the border university, since it was enacted against the basic spirit of the unification of the university at the border border university and the permanent university at the border.

[1] Article 4 subparagraph 2 of the Administrative Litigation Act / [2] Article 4 subparagraph 2 of the Administrative Litigation Act, Article 19 of the Administrative Litigation Act, Article 5-2 of the former Decree on the Establishment of National Schools (amended by Act No. 2134 of Feb. 27, 2009)

Plaintiff (Attorney Kim Hong-won, Counsel for the plaintiff-appellant)

Senior Director of the Gyeonggi-do University (Attorney Kim Jong-hee, Counsel for the defendant-appellant)

1. The Defendant’s separate statement on November 7, 2008 confirms that the provisions of paragraphs 3 and 6 (excluding the second paragraph of paragraph (6)) are null and void among the “requirements for graduation in accordance with the special provisions on the special provisions on the graduation of the Department of Economic and Trade from the Gyeonggi-do University.”

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Facts of recognition;

A. The Plaintiff (designated parties, hereinafter “Plaintiffs”) and the designated parties indicated in the attached Form are students attending the business economics division of a permanent university. As the permanent university was incorporated into the Gyeongbuk University on March 1, 2008 pursuant to Article 2 of the Decree on the Establishment of National Schools amended by Act No. 20608, Feb. 14, 2008, the English, administrative, and business economics of the permanent university was abolished.

B. On November 7, 2007, the president of the Defendant and the president of the permanent university drafted the “Agreement on the Integration of the North Korean University and the permanent university” first of all, to consolidate the North Korean University and the permanent university. The content of the Agreement on the requirements for the graduation of students who entered the permanent university prior to March 1, 2008, an integrated date, is as follows.

Article 16 (Requirements for Graduation)

(1) In principle, the school regulations and curriculum of the previous resident university shall apply to students who entered a resident university prior to the date of integration: Provided, That where they meet the requirements for graduation referred to in the provisions of the provisions of the resident university and obtain approval for graduation referred to in Article 57 (Recognition of Qualifications for Graduation) of the School Regulations, a degree in the name of the university in the name of the university in North

C. After that, on December 31, 2007, the Defendant prepared a detailed implementation plan for the integration of the North Korean University and resident universities, and prepared a plan for the protection of students with regard to 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 of the permanent university in accordance with the school regulations of the year of the consolidation;

- 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.

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

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

○ Measures for temporary closure students at a permanent university at the time of the consolidation

-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, major, or school 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 department, major, or academic year of the Integrated University;

D. On February 29, 2008, the Defendant amended the school regulations of the Gyeongbuk University to integrate it with a permanent university, and stipulated the transitional measures for students, etc. of a permanent university in Article 3 of the Addenda, and the content thereof are as follows.

Article 3 (Transitional Measures for Students, etc. at Superior's University)

1. Residential universities abolished by the implementation of the school regulations shall continue to exist until February 29, 2012 (industrial college employees until August 31, 2010) where new students in 2008 graduate without school records.

(2) Students attending a permanent university as at the time this school regulation enters into force shall be deemed to be registered at the relevant school year of the relevant department of this university.

(3) The school regulations and curricula of the previous permanent university shall apply to students who enter a permanent university as at the time this school regulations enters into force: Provided, That within the duration referred to in paragraph (1), students who intend to be subject to the school regulations of the North Korean university shall complete an educational course prescribed by the school regulations of the North Korean university, and matters related thereto shall be determined separately by the president.

(4) If a resident university fails to graduate from a school by the duration referred to in paragraph (1) due to justifiable grounds, such as temporary absence from school, the relevant school may be transferred to another industrial college or university of North Korea in the same or similar department or major, respectively. In such cases, the prescribed number of students enrolled in the school shall be deemed to be determined separately.

E. On August 7, 2008, the Defendant enacted the “Special Cases Concerning the Graduation of Students at Gyeongju University” (Article 1486 of the Regulations; hereinafter “Special Cases”) in accordance with the Agreement and the detailed implementation plan, and the regulations of the Gyeongbuk University, and some of the contents thereof are as follows.

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 previous permanent university: Provided, That where such graduates are recognized as those specified in Article 57 of the school regulations of the Gyeongbuk University, a degree may be granted to the Gyeongbuk University.

(3) Where three departments (English, administrative department, business economics, etc.) to be closed at a permanent university intends to obtain a degree in the same or similar department (English, administrative department, and economic and trade department) at a permanent university, a student shall obtain the major credits determined by the same or similar department at a permanent university, 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 student intends to graduate from the university before February 29, 2012, the university, college, and department of a certificate of graduation shall be marked as follows:

1. Where a permanent university meets the requirements for graduation and completes a general course referred to in Article 3 (2), a university, department, or major of a permanent university may be granted a degree in the 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.

F. Meanwhile, on October 20, 2008, the head of the Gyeonggi-do Economic and Trade Department established “requirements for Graduation in accordance with the special provisions on the graduation of the Department of Economic and Trade at the Gyeonggi-do Economic and Trade (hereinafter “Requirements for the graduation of this case”) under the name of the head of the Gyeonggi-do Economic and Trade University, and finally decided on November 7, 2007.

G. According to the requirements for the graduation of this case, a resident university who intends to graduate from the Gyeong University as a student of the Gyeongbuk University shall complete at least a total of 70 credits, which is the requirements for graduation from the Gyeong University, as a major student. Among them, 25 credits shall be deemed as a substitute for the credits earned at a resident university, but shall not be recognized as credits even if they completed 15 subjects (total of 45 subjects) such as economics, macroeconomic, and international economics, etc. at a resident university (related to paragraph (3)), and the number of students enrolled at a resident university shall not exceed 15% of the number of students when they apply for a major course established in the Gyeong University’s Ministry of Economic and Trade (related to paragraph (6)).

[Based on Recognition] A without dispute, Gap evidence 1 through 7, Gap evidence 9, 10, 11, Gap evidence 15, 16, Eul evidence 17-3, Eul evidence 2-1, 2, 3, Eul evidence 6, Eul evidence 7-1, 2, and Eul evidence 8-1, 2, and 3, and the purport of the whole pleadings

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 do not directly change the specific rights and obligations of the people in accordance with laws, orders or administrative rules of general and abstract nature, which stipulate the requirements for the recognition of the graduation qualification (major credits) to obtain the degree of the same or similar department of economic, trade, and trade, which is the same or similar department of a permanent university, among the departments closed at the permanent university.

(b) Markets:

If a law order or administrative rule has a general and abstract nature, it cannot be deemed as a disposition itself, but if it has a characteristic to regulate the specific rights and duties or legal relations of a citizen directly without mediating other enforcement acts, it constitutes an administrative disposition which is the object of an appeal litigation (see Supreme Court Order 2003Da23, Oct. 9, 2003, etc.).

As seen earlier, the requirements for the graduation of this case are limited to the students who entered the business economics department of a permanent university on or before March 1, 2008, and the contents of the requirements for graduation, major subjects, and credits are specifically determined and applied to the above students immediately without any involvement in the act of execution, and the requirements for the graduation of this case to the above students to graduate from the economic and ordinary university within the duration of a permanent university have no choice but to follow the requirements for the graduation of this case. In light of the above, 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 defendant without any other act of execution.

3. Determination as to whether the requirements for 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 through the resolution of the faculty council or the deliberation of the dean, the Minister of Economic and Trade at the Gyeongbuk University was established, and the defect is significant and apparent.

(2) Since the contents of the requirements for graduation in this case are excessively inequalityd to the Plaintiff and the designated parties who entered the business economics department of a permanent university, paragraphs (3) and (6) (excluding the second paragraph in paragraph (6)) of the requirements for graduation in this case are invalid due to significant and apparent defects in the form and content thereof.

(b) Markets:

(1) Whether there is a defect in the form of the graduation requirement of this case

According to Article 5-2(1) of the Decree on the Establishment of National Schools, universities (limited to Gangwon-do University, Gyeongbuk-do University, Jeonnam University, and Jeju National University) shall have one vice-president to assist the president in the duties of the president, who shall be appointed 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 concerning some of his/her authority, such as school affairs, in order to efficiently promote the duties of the university. In principle

In addition, according to Article 83(1) through (4) of the School Regulations, “school regulations” may be enacted by the president of the relevant university, the head of the relevant university, the head of the autonomous major department, the head of the relevant university, at least eight faculty members, and at least 50 faculty members, following the president’s public announcement, gathering of opinions, and the faculty conference. According to Article 84(1) and (2) of the Regulations, “laws” may be enacted by the president of the relevant university, the head of the relevant university, etc., after the faculty’s faculty council, etc., submit a proposal for enactment and amendment, the president of the relevant university, etc., promulgates such proposal through the faculty council. According to Article 85(1) and (2) of the Regulations, the president of the relevant university, the president of the relevant university, and the president of the relevant faculty council, may also enact the regulations

According to the above facts and relevant regulations, the requirements for the graduation of this case constitute a detailed determination of the matters necessary for the implementation of school administration in accordance with the special provisions of this case, and thus, the legislative authority should be the defendant. As seen earlier, the requirements for the graduation of this case were established in the name of the Minister of Economic, Trade, and Energy of the Gyeongbuk University, which was enacted by a non-legal authority.

The defendant asserts that the enactment of the matters concerning major credits was delegated to the president of the Ministry of Economic and Trade under Article 3 (3) of the Special Cases of this case. However, according to the national school establishment order and the above school regulations, there is no ground to delegate them to the president of the Ministry of Economic and Trade. Even if the internal delegation constitutes internal delegation for the convenience of business, in the case of internal delegation, the external expression of intent shall still be the defendant, who is the authority of establishment. However, there is no evidence to acknowledge that the requirements for graduation of this case were established in the name

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

As seen earlier, although the business economics of a permanent university including the Plaintiff and the designated students already obtained credits from the permanent university, such as the U.S. economy, macroeconomic, international economics, etc., the Plaintiff’s demand that the aforementioned students take part in the same subject established in the Ministry of Economic and Trade of the North Korean University uniformly is not only deprived of the aforementioned students of the opportunity to take part in the other subject established in the Ministry of Economic and Trade of the North Korean University, but also making the aforementioned students lose the opportunity to take part in the course during a reasonable semester (Paragraph (3) of the requirements for graduation of this case); further, the aforementioned students’ number of students who can take part in the course at the university is set at 15% of the fixed number of students to take part in the course; and accordingly, the aforementioned students’ opportunity to graduate from the Ministry of Economic and Trade of the North Korean University is unfairly restricted (Paragraph (6) of the same case’s basic provision on the enactment of Paragraph (3) of this case’s two paragraphs (6) and (6) of this case’s basic provision are inappropriate.

(3) Whether the requirements for graduation of this case are invalid

In principle, in order for defective administrative dispositions, etc. to be null and void automatically, it should be objectively obvious that the defects violate important parts of the laws and regulations, and in determining whether the defects are significant and obvious, the purpose, meaning, functions, etc. of the laws and regulations should be examined from a teleological perspective, and at the same time, reasonable consideration should be made on the characteristics of specific cases themselves (see Supreme Court en banc Decision 94Nu4615, Jul. 11, 1995; Supreme Court Decision 2003Du2403, Nov. 26, 2004; etc.). Provided, That if there are special circumstances where it is deemed that the defects are not deemed null and void automatically due to the lack of special protection of a third party, while it does not seriously undermine legal stability even if they are serious but unclear (see Supreme Court Decision 2008Du17168, Feb. 12, 2009).

As seen earlier, in light of the fact that the requirements for the graduation of this case were established by a person who is not authorized to enact, and the fact that the provisions of paragraphs (3) and (6) (excluding the second paragraph (6)) of the requirements for the graduation of this case unfairly deprives students in the business affairs and economics division of the existing permanent university of the opportunity to graduate from the university as students in the economic and ordinary school of the Gyeongbuk University, the defect in the requirements for the graduation of this case is objectively obvious as it violates the important part of the national school establishment order, the regulations of the Gyeongbuk University, the basic spirit of the integration of the Gyeongbuk University, and the purport of the enactment of the special provisions of this case. As such, among the requirements for the graduation of this case, the provisions of paragraphs (3) and (6) (excluding the second paragraph (6)) (excluding the second paragraph) sought by the plaintiff

Even if the above defect does not constitute objective apparent evidence, it is reasonable to deem that the requirement for graduation of this case was established in the course of the integration between a permanent university and a specialized university, and most of the problems arising therefrom were limited to all relevant persons (such as faculty members, students, etc. including professors) of a permanent university and a specialized university, and that the protection of a third party at a disadvantage is not particularly problematic even if the requirement for graduation of this case is null and void automatically. On the other hand, if the requirement for graduation of this case is not deemed null and void automatically, it is obvious that the Plaintiff and the designated parties are required to comply with the requirement for graduation of this case. Thus, it is reasonable to deem that the requirement for graduation of this case is void as a matter of course.

4. Conclusion

Therefore, the claim of this case by the plaintiff and the designated parties is reasonable, and it is so decided as per Disposition by the assent of all participating Justices.

Judges 144 (Presiding Judge)