(영문) 서울행정법원 2015.12.4. 선고 2015구합6019 판결

2. On June 27, 2014, the Defendant’s decision not to accept an objection against a price adjustment order regarding “B of curriculum books” against the Plaintiff is revoked.

3. Of the costs of lawsuit, 1/5 are assessed against the Plaintiff, and the remainder 4/5 are assessed against the Defendant, respectively.

Purport of claim

In the first place, on March 27, 2014, the defendant revoked a price adjustment order for the "B" of the curriculum name for the plaintiff on March 27, 2014.

Reasons

1. Details of the disposition;

A. The Plaintiff published C Textbooks used at high school (hereinafter “the textbook of this case”) and determined the desired price of the textbook of this case as KRW 13,800 per one ticket.

B. On March 27, 2014, the Defendant ordered the Plaintiff to adjust the price of the instant textbook to KRW 5,860 per one ticket on the grounds of Article 33(2)3 of the Regulations on Textbooks (amended by Presidential Decree No. 26185, Feb. 18, 2014; hereinafter referred to as the “Rules on Textbooks”) (hereinafter referred to as the “instant provision”).

C. The Plaintiff appealed and filed an objection on April 17, 2014, but the Defendant rendered a decision not to accept the said objection on June 27, 2014 (hereinafter referred to as “decision not to expropriate the instant case”).

D. The Plaintiff filed an administrative appeal against the decision on non-acceptance of the instant case, but the Central Administrative Appeals Commission decided to dismiss the Plaintiff’s claim on March 24, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 12, the purport of the whole pleadings

2. Relevant provisions.

It is as shown in the attached Form.

3. Whether the part concerning the primary claim among the lawsuit of this case is legitimate

According to the main text of Article 20(2) of the Administrative Litigation Act, a revocation lawsuit cannot be instituted after the lapse of one year from the date of the disposition, etc. However, as seen earlier, the fact that the disposition of this case was taken on March 27, 2014 is deemed to have reached the Plaintiff at that time, and the fact that the lawsuit of this case was brought on May 22, 2015 is apparent in the record. Thus, it is apparent that the lawsuit of this case was instituted after the lapse of one year from the date of the disposition of this case.

Therefore, the main claim part of the lawsuit in this case is unlawful as it was filed after the time limit for filing the lawsuit expires.

4. Whether the decision on non-acceptance of this case is lawful

(a) Facts of recognition;

1) Systems related to the determination of the prices of textbooks

A) After the 1950s, the implementation of the textbook price assessment system and the introduction of the price autonomy system for textbooks has been under circumstances where Defendant (the name of the head of literature delivery, the Minister of Education, Science and Technology, the Minister of Education, and the Minister of Education, Science and Technology, etc. has been changed due to the restructuring of government organizations) has been under circumstances. However, as there have been opinions that enhance the diversity and quality of textbooks by respecting the creativity and autonomy of publishing companies, the former textbook regulations (amended by Presidential Decree No. 21687, Aug. 18, 2009; hereinafter the same shall apply) were amended by Presidential Decree No. 26185, Feb. 18, 2014; hereinafter the same shall apply) adopted Article 32, the price of government-designated books should be separately determined by bidding, while the author and the agreed publishing company should separately determine the price of the book, and when there is a concern that the prices of authorized books and authorized books might be unfairly determined, the so-called textbook price adjustment system may be recommended.

B) Introduction of measures to advance textbooks

On January 12, 2010, the defendant announced the "plan for the advancement of textbooks" in 2010, which includes the following measures for the self-regulation of textbook prices, the following contents: (i) encourage the competition of the class of textbooks in consideration of user convenience and prices; (ii) encourage the development and use of various textbooks that meet the student level by expanding authorized textbooks due to the conversion of authorized textbooks, etc.; and (iii) enhance the sound competition and accountability of textbooks by improving the authorization system. The above plan includes the contents that enable the recommendation for price adjustment of textbooks with respect to unjust prices for textbooks and price stabilization.

C) the introduction of a price adjustment order system;

On August 16, 2013, the Defendant pre-announceed a partial amendment to the regulations on curriculum books that impose the obligation to accept recommendations for price adjustment, and Article 33(2) of the former Curriculum Rules (Article 33(2) of the former Curriculum Rules) was amended on February 18, 2014, “The Minister of Education” refers to the following reasons (i.e., where the ratio of manufacturing cost not actually incurred in the process of developing and manufacturing books among manufacturing cost, exceeds 15/1,000, and 2. Where there were errors in the classification of price adjustment items or cost items:

3. Article 33(1) of the former Curriculum Rules, which stipulates that the price of authorized books and approved books may be determined unfairly, or that if the publishing company collects all the expenses incurred in the development of books after the price was determined, and does not reflect them in the price, the price may be adjusted via the Deliberation Council (Article 33(1) of the former Curriculum Rules, which stipulates that the price of the authorized books and approved books shall be determined by the publishing company which agreed with the author, has been maintained). Accordingly, the price adjustment system based on the autonomy of the prices of textbooks was introduced.

2) In the case of national textbooks, such as selection and adoption of textbooks, only one subject exists, and schools need not separately select textbooks. However, in the case of confirmatory and recognized textbooks, a number of types of textbooks that passed the examination and authorization examination per subject exist, and schools shall adopt textbooks by subject through separate selection procedures. Meanwhile, the State bears the burden of purchasing the textbooks used at elementary schools and middle schools, regardless of national, inspection and authorization textbooks.

3) Delivery, etc. of the textbook of this case

A) The Plaintiff filed an application with the Defendant for the authorization of the textbook of this case, and the Korea Institute of Curriculum Evaluation and Planning delegated the authorization review work by the Defendant conducted an examination of the suitability of the textbook of this case as a textbook, and subsequently decided to pass the final decision on August 30, 2013.

B) From September 2013, the Plaintiff displayed the textbook pass copies of this case to each high school, received its adoption and orders from some high schools, and then printed textbooks and supplied them to some high schools.

4) Process, etc. of the instant disposition

A) An incorporated association D (hereinafter referred to as the “instant organization”) shall promote the rationalization of the publication of textbooks for which inspection and authorization have been obtained, thereby providing support and management services for the joint publication of textbooks with the aim of contributing to the development of school education by allowing high-quality textbooks to be produced and supplied in a timely manner. Members of the instant organization are those who have the right to issue books and authorization, and as of June 30, 2014, 94 copies of authorized books are affiliated with the instant organization. The Defendant has consulted on the instant organization and policies on textbooks.

B) On November 8, 2013, the Defendant sent to the instant organization a document containing the content that “for the purpose of determining the price of the authorized book, each publishing company may prepare the cost calculation details and submit them together with the evidential data,” under the title that “request for cooperation in submitting data for determining the price of the new book and approved book and guidance of the Office of Education of the City/Do.” In order to determine the price of the authorized book, the Defendant sent a document containing the said purport to the Plaintiff, but the Plaintiff did not submit the data on the cost of developing the textbook of this case.

C) The relevant public officials of the Ministry of Education, the president of the instant organization, the president of the E (hereinafter referred to as “E”), and persons related to publishing companies, such as F, etc., were present at the Institute of Education Council meetings on February 21, 2014 in relation to textbook price decisions, etc. The above Institute of Education requested the cooperation of the relevant public officials of the Ministry of Education so that textbook prices can be determined at a reasonable level, and the publication companies will present their opinions by February 22, 2014 after reviewing the standards for calculation presented by the Ministry of Education. At the same time, the Ministry of Education presented opinions by each publishing company regarding the calculation of the unit price for each textbook: The total price calculated according to the actual number of copies published; the unit price for each textbook is calculated by dividing the total price calculated according to the number of copies published; the number of copies published; the average amount to be corrected; the number of copies to be corrected; and the number of copies to be reduced and the number of copies to be applied to G 20.

D) The Defendant, on March 1, 2014, discussed the basis and criteria for calculating the recommended amount, application of the unit price, recommendation price proposal by publishing company, etc. (hereinafter referred to as the "First Council"; hereinafter referred to as the "Council"). At the time of the instant Council, the chief director and the F representative director participated in the Council as a member, and the president and the F representative director of the instant organization continued to participate in the second and third Council. At the time of the first Council, the materials presented at the time of the first Council were indicated as the books subject to price adjustment, and the authorized books, such as the instant Text, are indicated as the books. The number of copies published, actual number of copies published, standard number of copies published, manufacturing cost, manufacturing cost, total amount of recommended price, desired price, price, reduction rate, and the following calculation standards, calculation standards and unit price are stated, and the following calculation standards are stated.

A person shall be appointed.

E) On March 6, 2014, the Defendant recommended the Plaintiff to adjust the price of the instant textbook as KRW 5,490 per one ticket (hereinafter “the first recommendation”). However, the Plaintiff did not comply with the first recommendation.

F) On March 10, 2014, the Defendant invited the persons related to the publishing company to explain the adjustment recommendation criteria and the method of applying the standard number of copies, etc., and sought opinions from the publishing company related parties. On March 14, 2014, the Defendant again invited the representatives of the publishing company to invite them to explain the method of determining the standard number of copies and to explain the method of determining the standard number of copies, and, when calculating the standard number of copies, would raise incentives from 10% to 18% to the publishing company that is more than the average number of copies.

G) On March 18, 2014, the Defendant: (a) held a deliberative council on March 18, 2014, discussed the proposal for a price adjustment order for authorized books; and (b) deliberated on the said agenda item; (c) at the time of the second deliberative council, the instant textbooks and other authorized books were written as price adjustment books; and (d) the basis for calculation and application of the price adjustment order for the textbook, etc. were written as price adjustment books; and (e) the said materials include the expected number of authorized books, such as the textbook, the actual number of publication copies, standard number of publication copies, manufacturing cost, total price, output cost, calculation price, and desired price; and (e) the detailed calculation standards and unit price, such as material cost, printing, and manufacturing cost, are written as follows:

Ⅲ Calculation of Standard Number and Calculation of Application ○ Standard Number

The application of the standard number of copies: maximum (stage 1, 2) - When orders are issued at least average (stage 2) - When the actual fixed price of the copies published is below the total (stage 1, 2) / When orders are issued at less than the average (stage 2: / Total 1, 2 average Stage 1): the defendant recommended the plaintiff on March 19, 2014 that the adjustment recommendation price for the textbook of this case shall be 5,830 won per one ticket (hereinafter referred to as the "second recommendation"). However, the plaintiff did not comply with the second recommendation.

I) On March 25, 2014, the Defendant held a meeting of the Council to examine evidentiary materials submitted by the publishing company, and passed a resolution on the proposed price adjustment order under the provision of this case (hereinafter referred to as the “third Council”). The above price adjustment order includes the authorized books, such as the textbook of this case, as the books subject to price adjustment order, and includes the basis for calculation and unit price standard as the data presented at the time of the first Council. Furthermore, the aforementioned price adjustment order includes the estimated number of authorized books, such as the textbook of this case, the actual number of copies published, the actual number of copies published, the standard number of copies published, the standard number of copies, the production cost, the total price, the calculation price, the desired price, the order, the desired price, the desired price reduction rate, and the detailed calculation standards and unit price, such as material cost, printing and manufacturing cost, and the calculation of base number are written as follows.

A person shall be appointed.

[Grounds for Recognition] Facts without dispute, Gap evidence Nos. 12, Eul evidence Nos. 3 through 11 (including relevant branch numbers), the purport of the whole pleadings

B. The assertion of procedural defects and the determination thereof

1) The plaintiff's assertion

In rendering the instant disposition, the Defendant did not present to the Plaintiff the specific circumstances falling under subparagraph 3 of the instant provision and the grounds for determining that the desired price of the textbook of this case was unreasonable, and did not notify the Plaintiff of the calculation details of the adjustment price, including the determination method of standard number of copies. As such, the instant disposition violated the duty of presentation of reasons under Article 23(1) of the Administrative Procedures Act, and thus, the non-acceptance decision of this case is unlawful.

2) Determination

A) Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall, when taking a disposition, provide the basis and reasons for the disposition to the parties, exclude the arbitrary decision of the administrative agency and allow the parties to properly cope with the administrative remedy procedure. Thus, in full view of the contents stated in the written disposition, related Acts and subordinate statutes, and the overall process up to the disposition, etc., where it is sufficiently possible to find out which basis and reason the parties to the disposition were made at the time of the disposition, and where it is deemed that there was no particular hindrance to moving into the administrative remedy procedure, the disposition cannot be deemed to be unlawful due to such failure, unless the grounds and reasons for the disposition are specified in the written disposition (see Supreme Court Decision 2007Du20348, Dec. 10, 2009).

B) According to the statement in Gap evidence No. 2, the fact that the Act and subordinate statutes based on the disposition of this case only state the provision of subparagraph 3 of this case, and that "the textbook price of this case is likely to be unfairly determined" may be acknowledged as not having been separately stated. However, considering the following circumstances that can be known in addition to the purport of the entire pleadings, the plaintiff could sufficiently be aware of what grounds and reasons it was made at the time of the disposition of this case, and it would not have any particular impediment to moving to the administrative remedy procedure.

(1) Those related to publishing companies, such as relevant public officials of the Ministry of Education, the president of the instant organization, E, and F, held a meeting regarding the determination of textbooks on February 21, 2014, and thereafter E, F, G, etc. submitted their opinions to the Defendant on February 22, 2014.

(2) The chief director of the instant organization and the representative director of F, who had consulted about the policies on the textbook with Defendant and the textbook, participated in the first to third deliberative councils. The materials discussed at each deliberative council, include the expected number of copies published, actual number of copies published, standard number of copies published, production cost, production cost, production cost, recommendation price, desired price, and reduction rate of the textbook, and include specific calculation standards and unit price, such as material cost, printing, and production cost. After the completion of each deliberative council, the chief executive officer, etc. of the instant organization, etc., sent these materials to publishing companies as members of the instant organization.

(3) On March 10, 2014, the Defendant invited the persons related to the publishing company to explain the criteria for calculation of the adjustment recommendation price and the applicable method of the standard number of copies, etc., and sought opinions from those related persons. On March 14, 2014, the Defendant also explained the method of determining the standard number of copies to the representative of the publishing company.

(4) Although the Plaintiff did not join as a member of the instant organization, the Plaintiff seems to have been aware of a series of procedures and contents conducted between the Defendant and other publishing companies as seen earlier.

(5) On the other hand, on December 6, 2013 and January 23, 2014, the Defendant issued the instant notice to the Plaintiff on the basis of the following: (a) details of the price calculation for the textbook of this case; (b) details of the marking design expenses calculation; (c) details of the planning and research expenses; (d) details of the main design expenses; (c) details of the correction and review fees; and (d) details of the correction and review fees calculation; and (e) the submission of accurate materials; and (c) details of a price adjustment order upon delegation under Article 33(3) of the Curriculum Rules on March 7, 2014, the Defendant issued and announced the instant notice based on the detailed criteria for calculating the adjustment amount. Moreover, the Defendant issued a price adjustment order based on the reference number and the method of application discussed at the Deliberation Committee on March 6, 2014 and the recommendation of the instant disposition, which are similar to the instant price adjustment amount.

In light of these circumstances, the Plaintiff appears to have been aware of the regulations for the purpose of study and the publication of this case while engaging in the publishing industry of the curriculum books. The Defendant classified the materials submitted regarding the expenses incurred in the production and supply of the textbook of this case as the standards under the above ① or ⑤, and determined whether the desired price of the textbook of this case is unfair, and determined that the adjustment amount of the disposition of this case was calculated in accordance with the standards under Article 33(3) of the Curriculum Rules and the Notification of this case.

C) Therefore, even if the Defendant did not specifically present the calculation method and details of the adjusted amount, such as the method of determining standard number of copies, etc., in the disposition of this case, it is difficult to view that the Defendant violated the duty of presentation of reasons under Article 23(1) of the Administrative Procedures Act. The Plaintiff’s assertion on this part is without merit.

C. The assertion on the illegality of the provision of this case and the determination thereof

1) The plaintiff's assertion

Article 3(1)3 of the Act provides that “The time when the publishing company enters the calculation details of the price of the authorized book shall only pass the basic examination of the textbook authorization, and thus, it is impossible to predict the actual number of copies at this time.” As such, the determination of illegality of the price of the authorized book shall be made based on such determination. ② The determination of illegality of the price of the authorized book is made without considering the size of the number of copies published in the whole textbook or the number of copies published in the textbook subject to the price adjustment order, and the determination of the permissible error of the expected number of copies published and the number of copies actually published are set at 1,00 copies, but there is no reasonable ground for such determination. As such, the instant provision, which is the basis for the disposition of this case, is unlawful,

2) Determination

In light of the contents of Article 3 of the Text 3 of the textbook of this case, considering that the actual number of copies of the textbook of this case was compared and examined with the number of copies of the textbook of this case after passing the authorization final authorization of the textbook of this case, it seems very difficult for the plaintiff to accurately estimate the number of copies of the textbook of this case from the time when the school approved and ordered the textbook of this case as the textbook of the relevant school, and the textbook of this case is still subject to basic examination, and it is unclear whether the textbook of this case will be finally passed as the authorized textbook of this case, and the number of copies of the textbook of this case can be (the number of copies of the textbook of this case is not limited to the number of authorized textbooks of each subject of this case) and the quality of other textbook of the textbook of this case is not known, it is difficult to determine the appropriateness of the number of copies of the textbook of this case as the total number of copies of the textbook of this case without any reasonable reason to determine the number of copies of the textbook of this case as 0 per 10 per unit of printing.

However, in the case of the curriculum books, which are delegated with the authority to determine matters necessary for price assessment by Article 29(2) of the Elementary and Secondary Education Act, the provision of curriculum books, which is a Presidential Decree, shall be deemed to have established the standard of response necessary for determining the illegality of the determination of the price of textbooks. Furthermore, in light of the language and text and legislative intent of the provision of this case, there are reasons under subparagraph 3 of the provision

Even if there are concerns over unfairly determining the price of a textbook, it cannot be interpreted that the defendant can not order the adjustment of the price of the textbook, and the defendant can order the adjustment of the price of the textbook separately from the circumstances where there are grounds for subparagraph 3 of the provision of this case and that the defendant can order the adjustment of the price of the textbook.

Therefore, even if there is room to deem that Article 3 of the instant case’s provision is reasonable and equitable by establishing a uniform standard based on the actual number of copies published, it can be supplemented in the process of determining whether the textbook price is likely to be determined unfairly, and even if there is no room to narrow the scope of the permissible error or consider the existence of the publishing company’s intent or negligence, such circumstance alone is insufficient to deem that Article 3 of the instant case’s provision violates the principle of excessive prohibition or the principle of proportionality as unlawful. Accordingly, the Plaintiff’s assertion on this part is without merit.

D. The assertion that there is no ground for the disposition and the judgment thereof

1) The plaintiff's assertion

Since it falls under subparagraph 3 of the provision of this case, it is not deemed that the price of the textbook of this case is likely to be unfairly determined, and it is necessary to determine whether the price of the textbook of this case is likely to be determined separately. However, the defendant's disposition of this case without omitting the judgment on the illegality of this case, and it cannot be deemed that the price of the textbook of this case is likely to be determined unfairly. Thus, the disposition of this case does not exist.

As such, since there exists a substantive error in the disposition of this case, the decision of non-acceptance of this case is unlawful.

2) Determination

A) As seen earlier, in order for the Defendant to issue an order for price adjustment for an authorized textbook, the circumstance that “the pertinent textbook falls under subparagraph 3 of the instant provision should be recognized,” and such circumstance should be recognized that “the pertinent textbook’s price will be unfairly determined.”

Meanwhile, in light of the background leading up to the introduction of the textbook price adjustment order system as a supplement to the textbook price autonomy system, even if the authorized textbook of high school has the characteristics of public materials, the state’s involvement in the textbook price determination should be limited to the minimum extent to reasonably supplement the market function for price determination in consideration of the financial burden of the State and local governments due to the increase of textbook price, the increase of parents’ burden, etc.

Therefore, in order to recognize that the price of the authorized textbook is likely to be determined unfairly, the mere fact that the rate of price increase of the relevant textbook is higher than the average rate of price increase is insufficient. Considering the direct and indirect factors and economic situation affecting the price, the level of national income, prices of similar items, etc., the price of the relevant textbook should be determined at an excessive level that cannot be accepted by social norms.

In addition, in light of the purport and text of the provision of this case, there is a discretion to determine whether to issue a price adjustment order in the case where the price of authorized textbooks is likely to be unfairly determined, or whether the price of authorized textbooks, which is the requirement for price adjustment order, is likely to be determined unfairly. Therefore, the defendant can issue a price adjustment order only when there is a circumstance that the price of the textbook is excessively high enough to the extent that it is not socially accepted by social norms, and the existence of such circumstance must be proved by the defendant.

B) In full view of the respective descriptions and the purport of Gap evidence 6-2, Eul evidence 7-2, Eul evidence 8-2, and Eul evidence 8-2, the facts that the actual number of copies of the textbook of this case is more than 1,000 copies than the expected number of copies published, and thus, the reason under subparagraph 3 of the provision of this case exists.

However, as seen earlier, Article 3(3) of the instant Act merely serves as the basis for determining whether the prices of authorized textbooks are likely to be unfairly determined, and it is difficult to view that the price of the textbook itself is reasonable and equitable. In order to determine the illegality of authorized textbooks, the circumstance that the textbook price was excessively high to the extent that it cannot be accepted by social norms should be supplemented. Therefore, even if the Plaintiff failed to submit data on the determination of prices of the instant textbook to the Defendant, it cannot be presumed that the instant textbook price is likely to be unfairly determined solely on the ground that there exist grounds under subparagraph 3 of the instant provision, even if the Plaintiff failed to submit data on the determination of prices of the instant textbook to the Defendant.

In addition, the evidence submitted by the defendant and the circumstances alleged by the defendant alone are insufficient to recognize that the price of the textbook of this case is so high that it can not be accepted by social norms, and there is no other evidence to support this, so the textbook of this case does not constitute "the case where the price of the textbook of this case is likely to be determined unfairly."

Therefore, the instant disposition is unlawful as it does not recognize the grounds for its disposition.

E. Sub-decision

The disposition of this case is not a ground for disposition, and there is no ground for disposition of this case.

Furthermore, it is unlawful without the need to review the Plaintiff’s objection against the instant disposition. Therefore, the decision of non-acceptance of the instant disposition is unlawful. Therefore, the decision of non-acceptance of the instant disposition should be revoked.

5. Conclusion

Therefore, since the part of the lawsuit of this case is unlawful, it is dismissed, and it is so decided as per Disposition by the assent of all participating Justices on the ground that the plaintiff's preliminary claim is reasonable.