[1] Whether standing to sue in an appeal litigation and standing to sue in a disadvantage disposition are recognized to the other party (affirmative)

[2] 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)

[1] An appeal litigation may be filed by a person who has a legal interest in seeking the revocation or invalidity confirmation of a disposition, etc. (Articles 12 and 35 of the Administrative Litigation Act), and the other party to a disadvantage disposition is deemed to have standing to sue as a person who has suffered an infringement of personal interest

[2] According to Articles 29-2(1), 13, and 14(1) and (2) of the Public Educational Officials Act, Articles 1, 2(1)1, and 40(1) of the Regulations on Promotion of Public Educational Officials, and Articles 14(1) and 16(1) of the Decree on the Appointment of Education, an appointing authority shall examine whether candidates are promoted to the extent of three times the number of public educational officials, and accordingly, a candidate included in the list of candidates for promotion is expected to undergo legitimate examination from the appointing authority. However, in a case where the appointing authority, etc. issued a disposition to exclude candidates included in the list of candidates for promotion for arbitrary reasons, such disposition to exclude candidates from the list of candidates for promotion is not considered as a disposition subject to appeal, there is no other right or legal benefit dissatisfied therewith. Accordingly, the act of excluding candidates for promotion from the list of candidates for promotion under the Public Educational Officials Act should be considered as a disadvantageous disposition subject to appeal.

However, the Minister of Education may conduct a certain examination for the candidates included in the list of candidates for promotion to determine whether to recommend the appointment, and does not necessarily require a specific candidate included in the list of candidates for promotion to be recommended, and even if the Minister of Education is a candidate recommended to be recommended, the President, who is the appointing authority, does not necessarily require the appointment authority to be promoted. As such, regarding the promotion of public officials, a wide range of discretion is granted to the appointing authority to the extent that it is impossible to compare the appointment authority with the administrative disposition against the general public or disciplinary action against the public. Therefore, if a decision to exclude the candidates included in the list of candidates for promotion, proves and prove that the decision to exclude the candidates is based on reasons that

[1] Articles 12 and 35 of the Administrative Litigation Act / [2] Articles 13, 14, and 29-2(1) of the Public Educational Officials Act, Articles 1, 2(1)1, and 40(1) of the Regulations on Promotion of Public Educational Officials, Articles 14(1) and 16(1) of the Decree on the Appointment of Educational Officials, Article 2(1)1 of the Administrative Litigation Act

[1] Supreme Court Decision 94Nu8129 Decided August 22, 1995 (Gong1995Ha, 3284), Supreme Court Decision 2013Du27517 Decided October 29, 2015 (Gong2015Ha, 1808)

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

The Minister of Education (Attorney Nam-soo, Counsel for defendant)

Seoul High Court Decision 2015Nu33839 decided July 9, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The issue of whether a certain act of an administrative agency can be a subject of appeal cannot be determined abstractly and generally. In specific cases, an administrative disposition is a law enforcement with respect to a specific fact conducted by an administrative agency as a public authority, which directly affects the rights and obligations of the people, with the mind that it is an act that directly affects the rights and obligations of the people. The decision should be made individually by taking into account the content and purport of the relevant Act and subordinate statutes, the subject, content, form, and procedure of the act, the actual relation between the act and disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law and the attitude of the administrative agency and interested parties related to the pertinent act (see, e.g., Supreme Court en banc Decision

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 Supreme Court Decisions 94Nu8129, Aug. 22, 1995; 2013Du27517, Oct. 29, 2015, etc.).

2. Article 29-2 (1) of the Public Educational Officials Act provides that the principal shall be appointed by the President on the recommendation of the Minister of Education (Article 29-2 (1). Furthermore, the promotion of a public educational official shall be based on his/her career rating, outcomes of retraining, work performance, and other capabilities that may be actually proven, as prescribed by Presidential Decree (Article 13). Meanwhile, the appointment authority or appointment-recommendation authority of a public educational official shall, as prescribed by Presidential Decree, prepare and keep the list of candidates for promotion by qualifications (Article 14 (1)); and, in cases of a public educational official, he/she shall, in principle, be promoted within three times the number of vacant positions in the list of candidates eligible for promotion or recommend the promotion (Article 14 (2)). According to the delegation, the public educational official's regulations shall not include the fixed number of persons who have obtained a qualification certificate of the principal of the school at all levels and the fixed number of candidates subject to disciplinary measures, such as performance rating and the fixed number of candidates subject to promotion, within one hundred times the appointment authority.

B. According to the provisions of the above statutes, the appointment authority shall examine whether candidates entered within three times the number of promotion candidates, and accordingly, a candidate included in the promotional register is expected to undergo a justifiable examination from the appointment authority. However, in a case where the appointment authority, etc. excluded the candidates included in the promotional register for arbitrary reasons, if such exclusion disposition is not considered a disposition subject to appeal litigation, then there is no objection thereto and there is no other means of remedy for infringement of the rights or legal interests. Accordingly, the act of excluding the candidates included in the promotional register from the promotional examination by the promotional examination method by the promotional examination method by the promotional list under the Public Educational Officials Act constitutes a disadvantageous disposition, which is subject to appeal litigation.

However, the Minister of Education may conduct a certain examination for the candidates included in the list of candidates for promotion to determine whether to recommend the appointment, and does not necessarily require a specific candidate included in the list of candidates for promotion to be recommended, and even if the Minister of Education is a candidate recommended to recommend the appointment, the President, who is the appointing authority, does not necessarily have to be promoted. As such, regarding the promotion of public officials, a wide range of discretion is granted to the appointing authority to the extent that it is impossible to compare the appointment authority with the administrative disposition against the general public or disciplinary action against the public. Therefore, if a decision to exclude the candidates included in the list of candidates for promotion to the extent that the decision to recommend the appointment is based on the grounds that they are reasonable under social norms

3. Review of the reasoning of the first instance judgment cited by the lower court reveals the following circumstances.

A. The Plaintiff is a public educational official who was promoted as an assistant principal on September 1, 201 after being appointed as an elementary school teacher on March 1, 1979 and served as the assistant principal of ○○ △△△△△, an elementary school teacher.

B. From October 21, 2013 to November 15, 2013, the Plaintiff received “the sixth elementary school principal qualification training” from October 21, 2013.

C. As of January 31, 201 each year, the ○○ Metropolitan City superintendent of education prepared a list of candidates for promotion in the order of candidates for promotion who evaluate their career, performance, and training performance and add up the evaluation points. In the year 2014, the number of candidates for promotion of the principal of an elementary school in the jurisdiction of the ○○ Metropolitan Office Office of Education was 14, and the list of candidates for promotion prepared on January 31, 2014 by the ○○ Metropolitan Office of Education (the principal of an elementary school) by the Plaintiff is registered in the order of 10.

D. On March 1, 2014, the President promoted 14 elementary school principals within the jurisdiction of the ○○ Metropolitan Office of Education, and the Plaintiff was not included in the promotion.

4. Examining the foregoing facts in light of the legal principles as seen earlier, it is reasonable to view that in the promotion of the principal of an elementary school in ○○ Metropolitan Office of Education in 2014, the act of the Plaintiff, who was a candidate included in the list of candidates for promotion of the principal of an elementary school, constituted a disposition subject to appeal litigation inasmuch as the Plaintiff was included in the list of candidates for promotion of the principal of an elementary school in the first place of education in the list of candidates for promotion

5. Nevertheless, the lower court determined that a presidential exclusion disposition against the Plaintiff does not constitute a disposition subject to an appeal litigation. In so determining, the lower court erred by misapprehending the legal doctrine on the eligibility and disposition of an appeal litigation, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is

The legal principles of the right to apply for the refusal disposition invoked by the court below are premised on the case where an administrative agency made a certain application and rejected it, and therefore, it is inappropriate to invoke it in this case.

6. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)