(영문) 서울행정법원 2017.9.1. 선고 2017구합50133 판결

1. Of the instant lawsuits, the part regarding the disposition of non-recognition of evaluation of, among the instant actions, the musical adaptation theory, I of the Practical Music Music Music Act, I of the practical music musicology, I of the practical musicology, and of the business music artist.

2. On March 11, 2016, the part of the disposition that the Defendant rendered against the Plaintiff for non-recognition of evaluation is revoked as to musical instruments I and computer music I.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

On March 11, 2016, the Defendant revoked the disposition not to grant recognition to the Plaintiff.

Reasons

1. Details of the disposition;

A. The Plaintiff is establishing and operating a vocational skills development training establishment B-specialized school.

B. On August 31, 2015, the Plaintiff newly applied for six subjects of the practical musical adaptation theory established by the above school to the Defendant, the practical musical musical music I, the practical music music music musicology I, the musical music history I, the musical music author, the musical music I, and the computer music I's six subjects to the Defendant (hereinafter referred to as "evaluation recognition").

C. On March 11, 2016, the Defendant indicated the result of the evaluation as follows to the Plaintiff, and made a disposition not to grant recognition for all six subjects (hereinafter “instant disposition”) on the ground that it fell short of the standard points (105 points) in the area of operational conditions.

1. Area of Basic Requirements: A (A) (A) area of operational conditions: 2. : 98 points (105/150 points). In the area of operational conditions: 98 points (105/150 points), the certified lifelong education teachers of the institution operating the institution and of the stability education and training organization operating the administrative ○○, shall be recognized as only 10,000 persons. D, excluding 15 persons. In the case of D, E.F. entered as a full-time lecturer shall be confirmed to an education and training institution that is not a full-time lecturer. G shall be confirmed as a full-time lecturer. It shall be recognized as 1 person. It is not possible to verify the performance records related to lectures in the application for recognition of appropriateness of the operation of the O curriculum and the attached materials. It is recognized as an education and training institution having no performance in the process of verifying the data on the on-site management (2014-2015);

○ 교육훈련기관 특성화교육훈련기관의 특성화를 위한 실적이 체계적이지 않고 구체적 실적 증빙도 불충분함. 충분한 연습시간을 확보하였다고 하나 연습실 사용 대장 등 연습실 사용 실적 확인을 위한기록 또는 증빙을 찾을 수 없고, 협약체결도 다수의 기관을 제시하였으나 웨딩업체와의협약 1건만 확인됨.○ 교육훈련기관 질관리교 강사 질 관리 방안으로 교 강사 O.T, 외국연수지원, 협의회 지원, 강의 스킬 향상 지원등 계획을 간략히 제시하고 있으나 실행실적에 관한 증빙을 확인하지 못함.학습자 지원방안은 길거리 공연 등 동아리 활성, 페스티벌 운영, 특강 시행 등이 이루어지고 있어 학생들의 교과 외 활동지원 등 상대적으로 잘 이루어지고 있으나 학습부진학생지원, 출석률 향상 지원 등과 현장(직업체험 등)과의 연계성 등 제시된 다양한 지원방안과관련한 실적은 확인이 안 됨.- 직원 질 관리를 위해 자체직무교육(학점은행제 관련업무, 근무요령, 성희롱예방 등)을 실시하였으나 우수직원 인센티브지급이나 해외전문연수 등은 증빙을 확인하지 못함.3. 학습과목 영역 (판정기준: 105점/150점)과목별 점수: 실용음악개론 94점, 실용음악작곡법 1 86점, 실용음악화성학 I 100점, 재즈음악사 98점, 컴퓨터음악 1 851)■ 컴퓨터음악I○ 교 강사의 전문성담당 교 강사 학사, 석사 전공은 클래식 작곡, 재즈피아노, 재즈 작곡이며 컴퓨터 음악 관련 분야 활동경력도 다소 부족함.○ 수업환경의 적절성컴퓨터음악1 운영을 위한 기자재가 불충분함. 컴퓨터 운영체제 믹서 음악관련 프로그램,시퀀서 프로그램 마스터건반 등이 너무 노후하며 오리오인터페이스, 스피커 등 해당 학습과정을 위한 기본 기자재 확보가 필요함.(이하 실용음악개론, 실용음악작곡법, 실용음악화성학 I, 재즈음악사 관련 기재는 생략)

D. On May 16, 2016, the Plaintiff filed an administrative appeal, and the Central Administrative Appeals Commission dismissed the decision on September 20, 2016.

【Facts without dispute over the grounds for recognition, entries in Gap evidence 1 and 27, the purport of the whole pleadings

2. Judgment on the defendant's main defense of safety

A. The defendant's argument

Since the plaintiff applied for the assessment assessment of five subjects, such as practical music adaptation, in 2016 and received the assessment assessment of four subjects, there is no benefit to seek revocation of the disposition of this case.

B. Determination

A lawsuit seeking the cancellation of an administrative disposition is a lawsuit seeking the restoration to the original state by removing the illegal state arising from the disposition, and protecting and remedying the rights and interests infringed or interfered with the disposition. Thus, if a change occurs after the disposition and an infringement of rights and interests has been resolved, there is no legal interest to seek the cancellation of the disposition.

After the Plaintiff received the instant disposition, it filed an application for the assessment and approval in 2016 for the five subjects of practical music adaptation theory, I of the Practical Music Music Music Act, I of the practical music music story, and computer musicI. On December 26, 2016, there is no dispute between the parties concerned as to the four subjects other than the computer music I subject, and there is no legal interest in seeking the revocation of the initial assessment and approval for the four subjects already subjected to the assessment and approval. Accordingly, the part seeking the revocation of the assessment and non-approval for the said four subjects among the lawsuit in this case is unlawful.

The defendant's main defense is justified within the scope of the above recognition.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Defendant violated Article 20 of the Administrative Procedures Act by failing to set and publicly announce the detailed criteria for dispositions by evaluation index applicable to the evaluation evaluation and assessment. In addition, the Defendant did not explain only some evaluation items while leaving 98 points out of 150 points out of the 150 points, and did not present specific reasons for the identification items and the reasons for the decline. The Defendant violated Article 23 of the Administrative Procedures Act by failing to present sufficient reasons for the evaluation items.

2) Contents defects

The defendant set up and assessed the evaluation index in the area of operational conditions beyond the scope delegated by the law, etc. In addition, in the evaluation and assessment in 2016, it is difficult to see that only one certified lifelong education teacher has placed a certified lifelong education teacher as a fundamental condition. Even if there is only one certified lifelong education teacher, the plaintiff should receive 8 points out of 10 points, and the records of performance submitted by the plaintiff are sufficient to receive a high score in the evaluation of operational conditions. However, the defendant issued a lower score on the part of the plaintiff. In addition, even though the expertise of some instructors in the evaluation of learning subjects is somewhat reduced or the machinery is worn out, the defendant is inappropriate for this reason, such as inappropriate.

B. Relevant legislation

It is as shown in the attached Form.

C. Determination

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

A) Article 23(1) of the Administrative Procedures Act provides that “When rendering a disposition, an administrative agency shall, in principle, present the basis and reasons for the disposition to the parties concerned.” This purport is to exclude the arbitrary decision of the administrative agency, and allow the parties to properly cope with the administrative remedy procedure. Therefore, in a case where it is sufficiently known that the parties concerned were made at the time of the disposition in full taking into account the contents of the written disposition, relevant statutes, and the overall process, etc. up to the time of the disposition, and where it is deemed that there was no particular hindrance to the party’s appeal and moving into the administrative remedy procedure, the disposition cannot be deemed unlawful due to such failure to specifically state the grounds and reasons for the disposition (see, e.g., Supreme Court Decision 2011Du18571, Nov. 14, 2013).

B) The Defendant, while rendering the instant disposition, disclosed the results of the instant disposition to the Plaintiff in such a manner as to disclose the overall points and points of each item in the area of operational conditions acquired by the Plaintiff and to point out insufficient or supplementary points related to the evaluation items and the evaluation index. Although the Defendant did not specifically disclose the points acquired by the Plaintiff on the evaluation items or the evaluation index, the Defendant was able to contest the appropriateness of the evaluation by clarifying the facts that form the basis of the evaluation on the items or indexes so insufficient, and in fact, the Plaintiff disputes the facts pointed out by the Defendant in the instant lawsuit and seems to have sufficiently confirmed the specific items. Thus, it is difficult to deem that the Plaintiff might not interfere with the Plaintiff’s dispute over the illegality of the instant disposition. This part of the Plaintiff’s assertion is rejected.

2) Whether Article 20(1) of the Administrative Procedures Act is violated

A) Article 20(1) of the Administrative Procedures Act provides that "the administrative agency shall determine and publicly announce the necessary disposition standards so that they may be specifically determined and publicly announced in light of the nature of the relevant disposition." Article 20(2) of the same Act provides that "the public announcement of the disposition standards under paragraph (1) may not be made in cases where it is substantially difficult in light of the nature of the relevant disposition or where there are reasonable grounds that it is deemed that the public announcement of the disposition standards is substantially detrimental to the safety and welfare of the public, by nature of the relevant disposition." The purpose of the system of establishing and public announcement of the disposition standards is to prevent arbitrary exercise of authority by the administrative agency, thereby ensuring the transparency and predictability of administration. Thus, the administrative agency is obliged to establish and publicly announce the disposition standards to the maximum extent specifically permitted by nature of the relevant disposition (see Supreme Court Decision 200

B) Article 3(5) of the Act on Recognition of Credits, Etc. (hereinafter “Recognition of Credits Act”) provides that “qualification of professors or instructors necessary for recognition, the contents of the standards for recognition, such as qualifications for learning facilities and learning facilities, and the details of the course of study, shall be prescribed by Presidential Decree.” Article 5(1) of the Enforcement Decree of the same Act provides that “The standards for recognition shall be outlined, and Article 5(2) of the same Act provides that “The number of professors or instructors under paragraph (1), detailed standards for the number of learning facilities, learning facilities and learning facilities, and the contents of the course of study, and other necessary matters concerning the evaluation and recognition shall be determined by Ordinance of the Ministry of Education,” and Article 3(1) of the Enforcement Rule of the same Act provides that “The Minister of Education shall determine the detailed standards for the evaluation and recognition in addition

C) Comprehensively taking account of the overall purport of evidence Nos. 2, 4, and 6 and the arguments, the Defendant posted a notice on July 27, 2015 on the homepage of the Credit Bank System, and notified it to the head of each education and training institution. Around August 2015 and around August 2015, an application manual for evaluation of the course of study based on the attendance of the Credit Bank System (hereinafter referred to as the “instant manual”) was prepared and distributed. The facts that include the following are acknowledged in the instant basic plan and the manual.

A person shall be appointed.

D) However, in light of the following circumstances acknowledged by the aforementioned provisions and the purport of the entire arguments and evidence, it is difficult to deem that the Defendant specifically determined and announced the criteria for assessment and approval prior to the instant disposition, and the publication of such criteria does not seem to have a considerable reason to believe that it is considerably difficult due to the nature of the relevant disposition or that it substantially undermines public safety and welfare. Accordingly, the instant disposition is unlawful as it violates Article 20(1) of the Administrative Procedures Act

(1) It is difficult to understand the minimum standards that can be assessed and recognized even if the Act on Recognition of Credits and the Enforcement Decree of the same Act, the Enforcement Rule of the same Act, the instant basic plan and the instant manual.

In particular, in the evaluation of operational conditions, if the evaluation score of the operating conditions is less than 70% (105%) of the full score of 150 points, the evaluation score of all subjects applied for regardless of the score of each subject in the course of study shall be judged inappropriate and the evaluation score of the operating conditions shall act as an important factor in whether the evaluation score of the operating conditions is evaluated or not. The defendant only disclosed the allocation by the evaluation item only (a difference compared to the year 2014 is published, and the evaluation score and the evaluation index for each item are partly changed) and did not disclose the criteria for the allocation by the detailed evaluation index or each evaluation index. For example, although the defendant allocated 40 points to the item of the financial rationality operation, he did not present any criteria to determine which degree of points can be obtained when he/she has obtained when he/she has been granted a certain ratio of each degree. As a result, it is difficult for the evaluation evaluation agency like the plaintiff to make efforts to make more efforts for each evaluation index to meet the criteria for the operation conditions.

(2) In fact, while rendering the instant disposition, the Defendant pointed out that a certified lifelong education teacher and a former teachers and instructors have been recognized as only one person, unlike the Plaintiff’s application form, in relation to the structure item 2 of the operating organization among the areas of the management circumstances. In the course of study, the Defendant pointed out that the Plaintiff failed to secure equipment in the case of a computer music subject in the field of the study. In advance, the Plaintiff could not be aware of whether the aforementioned items have met the evaluation standards by the evaluation index, such as whether the equipment was secured or not at the time of the instant application for the assessment. Ultimately, the Defendant received points that fall short of the passing standard points in both the operating conditions and the computer music I [the Defendant] (Article 2015-86 of the Education Department No. 2016 of Jan. 6, 2016, the Plaintiff applied for the assessment of the instant assessment, and the said guidance specifically sets out the size standards and the size of equipment to be secured for each area of the arts and skill lecture, and the list and quantity of equipment to be secured.

(3) The Defendant asserts that, when a prior announcement of the detailed criteria for assessment and recognition is made, it would result in a decline in the quality of an educational institution by intending to meet the minimum requirements for the assessment and recognition, and thus, it is consistent with the purport of the assessment and recognition system. However, this problem is not appropriate to be resolved by raising the standards for assessment and recognition so that the educational institution satisfies the appropriate requirements. It is not an appropriate method to keep the evaluation and recognition system closed. The assessment and recognition system is implemented by absolute evaluation that allows the relevant educational institution to obtain the evaluation and recognition, and the purport of the Act on Recognition of Credits extends the opportunity to access education to the class of the class of higher education by recognizing the credits, which serve as the basis for the recognition of academic background and the acquisition of degrees, and accordingly, it is reasonable to encourage and induce the educational institution to have high-quality education for the class of the class of higher education, including the human and physical facilities required by the Act and subordinate statutes.

3) Sub-determination

Although the instant disposition cannot be deemed to have violated Article 23(1) of the Administrative Procedures Act, it is necessary to revoke the instant disposition due to procedural defect in violation of the duty of publication of the disposition standard under Article 20(1) of the Administrative Procedures Act. Thus, the Plaintiff’s substantive defect assertion is not further determined.

4. Conclusion

Therefore, the part of the lawsuit of this case seeking revocation of the disposition not to recognize the evaluation of the actual musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical musical works I, I, and I is unlawful. Therefore, the plaintiff's claim against musical musical musical musical works I, and computer music I among the disposition of this case is reasonable, and it is so decided as per Disposition by the assent of all participating Justices.

Judges

The presiding judge, judge, senior judge

Judge Lee Young-soo

Judges Kim Gin-han

Note tin

1) No malicious points are written.

2) The Defendant indicated as safety items of the operating organization, but the part concerning the former teachers and instructors with certified lifelong education teachers constitutes an evaluation index of the organizational structure items of the operating organization.