(영문) 서울행정법원 2015.12.3. 선고 2015구합72122 판결

On March 1, 2015, the President of the Republic of Korea shall revoke the disposition of rejection of the intermediate appointment of the principal against the plaintiff.

Reasons

1. Details of the disposition;

A. On March 1, 1983, the Plaintiff was appointed as the B High School Teachers and served at C High Schools from March 25, 1985 to February 28, 2002.

B. On May 17, 2005, the Superintendent of the Seoul Special Metropolitan City Office of Education took a disciplinary measure against the plaintiff on the ground of the illegality that "at the time of providing a music teacher in Chigh School in C High School in 1997, the mother was aware of in the course of guiding the choir from 1997 to September 2003, the parent was given more than 2 times a year after the first sex relationship was established and the civil petition was filed." The plaintiff did not dispute the disciplinary measure of this case at the time of the plaintiff.

C. On August 15, 2008, the Plaintiff received amnesty and deleted the instant disciplinary record.

D. On March 1, 2011, the Plaintiff was promoted to the assistant principal of the D Female Middle School on September 2008, and was appointed as the E Middle School principal on March 1, 201 (term: from March 1, 2011 to February 28, 2015).

E. On December 2, 2014, the Plaintiff submitted an application for the reappointment of the principal to the principal. On February 2, 2015, the Superintendent of the Seoul Special Metropolitan City Office of Education recommended the Plaintiff to the Defendant as a person subject to the recommendation for appointment as the principal of the principal. However, on February 12, 2015, the Defendant excluded the Plaintiff from the appointment recommendation as the principal of the principal on the ground that there was the above misconduct (sexual misconduct).

F. On February 13, 2015, the President notified the personnel appointment of the public educational official on March 1, 2015, and the Plaintiff was not included in the list of the former Superintendent.

[Reasons for Recognition] Uncontentious Facts, Gap Nos. 1-3, 5, 6, Eul evidence No. 7-9, the purport of the whole pleadings

2. As to the defense of this case

A. Defendant’s assertion

The lawsuit in this case is unlawful since it is difficult to see that the plaintiff has the right to file an application for intermediate payment, and there is no rejection disposition accordingly.

C. Determination

If an administrative agency’s refusal of an application constitutes an administrative disposition that is subject to appeal litigation against a citizen’s affirmative filing of an application, the filing of the application must be an exercise of public authority or a similar administrative action, and the refusal must cause any change in the applicant’s legal relationship, and the citizen must have the right to file an application under the law or sound reasoning demanding that the applicant act be conducted (see, e.g., Supreme Court Decisions 96Nu14036, Jul. 10, 1998; 2007Du1316, Oct. 11, 207); the existence of the right to file an application, which serves as a prerequisite for recognizing a disposition of refusal, shall be determined abstractly by examining, in a specific case, the applicant’s refusal of the application without considering who is the applicant’s right to file an application; see, e.g., the right to file an administrative appeal exceeding a mere response to the application; and e., the determination of the rejection of the application should be made within 900Da16069, supra.

Article 29-2 (2) and (3) of the Public Educational Officials Act provides that the term of office of the principal of a school shall be four years and he may be reappointed only once, and Article 29-2 (1) through (3) of the same Act and Article 9-5 (1) of the Decree on the Appointment of Education may be reappointed to the principal of a school who has completed the first term of office unless there is any special reason for disqualification. Article 3 of the Guidelines on the Management of Affairs of the principal and the principal of a school according to the delegation provides that the principal of a school may be reappointed to the principal of a school who has completed the first term of office unless he/she has a special reason for disqualification. Article 3 of the Guidelines on the Management of Affairs of the principal and the principal of a school shall deliberate on whether there is a special reason for disqualification for the principal of a school for a person who is in the middle of a school, whether there is a defect in the management ability of a school, or not there is a reason for difficulty in performing duties

In full view of the above provisions, the principal whose primary term of office expires shall be deemed to have the right to request the President, who is the person who has the authority to appoint and dismiss, to make a reasonable and fair review as to whether he/she is reappointed in accordance with the procedures prescribed by the relevant statutes.

Since the Plaintiff filed an application for a heavy term of office before the expiration of the first term of office of the principal and the Plaintiff has the right to file an application for a reasonable and fair review as to whether or not the second term of office is in progress, the President, despite the above application, who did not appoint the Plaintiff as the principal on March 1, 2015 (hereinafter referred to as the “instant refusal disposition”), shall be deemed to constitute a disposition subject to appeal litigation.

The defendant's main defense is without merit.

3. As to the merits

A. The plaintiff's assertion

The rejection disposition of this case shall be revoked for the following reasons.

1) Although the instant disciplinary action was cancelled on the face, it is against the validity of the amnesty to donate that it is a principal being a principal due to the instant disciplinary action. Since it violates the principle of protecting trust against the statement of opinion expressed by the appointment of the principal on March 1, 2011, it constitutes deviation and abuse of discretionary authority.

2) Since there was no ground and reason for the disposition from the person having the authority to dispose at the time of the disposition, there is procedural error in violation of Article 23(1) of the Administrative Procedures Act.

C. Determination

1) Whether the discretionary authority is deviates or abused

As seen earlier, Article 29-2(1) through (3) of the Educational Officials Act and Article 9-5(1) of the Decree on the Appointment of Educational Officials provide that “The President may again appoint a principal who has completed the first term of office as a principal unless there is any special reason for disqualification.” In light of the form, content, etc. of the above statutes, the act of mid-term principal of a principal constitutes a discretionary act. Whether to select a principal in accordance with any of the standards is a personnel policy and, given its nature, a wide amount of discretion is granted to the President who is the person who has the authority to appoint and dismiss the principal, and it cannot be said that he/she must be the principal of a school, because he/she has no special reason for disqualification. Even if he/she was not selected as a principal, he/she still remains able to maintain his/her status as a teacher, and it does not result in harsh consequences such as deprivation of his/her status as a teacher. In light of the affairs of school, guidance and supervision of his/her school staff, and the details of duties of the principal who educate.

Unlike that the effect of the disciplinary action is lost by amnesty, there is no change in the validity of the relevant disposition even if amnesty exists (see Supreme Court Decision 95Nu8065 delivered on February 9, 196). Thus, the Plaintiff’s cancellation of the disciplinary action record upon amnesty does not lose the Plaintiff’s own facts or the facts of the above misconduct itself.

The rejection disposition of this case is not taken against the disadvantage in relation to the status according to the validity of the disciplinary action of this case, but based on the discretionary decision of the appointing authority taking into account the above misconduct, so it cannot be deemed that it is against the validity of the amnesty

In addition, it is difficult to deem that the president appointed the Plaintiff as the principal on March 1, 2011, and thus, there was a public opinion statement on the part of the Plaintiff. Therefore, the instant refusal disposition cannot be deemed to violate the principle of trust protection.

In full view of the above circumstances, there is no violation of law of deviation from or abuse of discretionary authority in the instant refusal disposition. The Plaintiff’s assertion in this part is without merit.

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

Article 3 (2) 9 of the Administrative Procedures Act and Article 2 (3) of the Enforcement Decree of the same Act provide that the Administrative Procedures Act shall not apply to matters concerning disciplinary action and other dispositions under the Acts and subordinate statutes related to the personnel affairs of public officials, which are difficult to undergo administrative procedures due to the nature of

Considering the fact that the selection of a middle-standing teacher is an area of personnel policy with a broad discretion to the person who has the authority to appoint and dismiss the principal, and that the middle-standing applicant has no grounds for disqualification and is not necessarily subject to restriction of the principal, it is reasonable to view that the rejection of a middle-standing teacher application constitutes a disciplinary action or other disposition under the personnel administration-related Acts and subordinate statutes of the public official, which is difficult to undergo administrative procedures due to the nature of the relevant administrative action

The plaintiff's assertion of this part from a different premise is without merit.

4. Conclusion

Therefore, we cannot accept the plaintiff's claim.