[1] Purport that the Minister of Education approves an appointment recommendation of the head of a university / Whether an act of excluding all or part of candidates for multiple presidents recommended by a university from an appointment recommendation constitutes a disposition subject to appeal litigation (affirmative)

[2] Whether a broad discretion has been given to the appointing authority with respect to the appointment of the president of a university (affirmative), and where a decision to exclude a candidate recommended by a university from the appointment of the president or the appointment of the president of a university does not violate the relevant statutes and regulations governing qualification for the president of a university, but is based on a ground with rationality under the social norms, whether such decision may be deemed unlawful (negative)

[1] The purport of recognizing the right to recommend the appointment of the head of a university is to assist the President’s primary examination of the qualifications of the candidates for the president recommended by the relevant university prior to the President’s final exercise of the right to appoint the president in order to harmonize the autonomy of university and the actual exercise of the president’s right to appoint the president. The exercise of the right to recommend appointment by the Minister of Education is in accordance with such system’s purport, and the president’s exercise of the right to recommend appointment by the relevant university is procedural expectation that a candidate for the president recommended by the relevant university will undergo legitimate examination by the Minister of Education. However, if the Minister of Education does not propose all or part of the candidates recommended by the relevant university for arbitrary reasons, it is effective to deprive the President of the opportunity to undergo examination and appointment by the President. Thus, if this does not constitute a disposition subject to appeal, there is no other way to relieve any rights or legal interests infringed upon. Therefore, excluding all or part of the candidates for multiple presidents recommended by the Minister of Education from the relevant university should be deemed a disadvantageous disposition

[2] A public educational official’s law stipulates that a university recommends multiple candidates for the head of a university, and the Minister of Education or the President does not have any provision that it is binding on the Minister of Education or the President of a university. Thus, even if the Minister of Education recommends multiple candidates to recommend a junior candidate, the autonomy of a university guaranteed by the Constitution and the law can not be deemed limited. As such, the appointment authority for the president of a university grants a wide range of discretion to the extent that it can not be compared with an administrative disposition against the general public or a disciplinary action against a public official. Accordingly, if a decision to exclude a candidate recommended by the relevant university from the appointment authority for the president or the president of a university is asserted and proved that the decision to recommend the appointment of the president of a university or the appointment of the president of a university is based on the reason that it is reasonable

[1] Article 24 (1) of the Public Educational Officials Act, Article 2 (1) 1 of the Administrative Litigation Act / [2] Article 31 (4) of the Constitution, Article 24 of the Public Educational Officials Act, Article 12-2 of the Decree on the Appointment of Educational Officials, Article 27 of the Administrative Litigation Act

Plaintiff (Law Firm, Kim & Lee LLC, Attorneys Song-chul et al., Counsel for the plaintiff-appellant)

(2) The Minister of Education (Attorney Cho Young-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2015Nu35705 decided July 21, 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, e.g., Supreme Court Decisions 94Nu8129, Aug. 22, 1995; 2013Du27517, Oct. 29, 2015).

2. A. Article 31(4) of the Constitution provides that “The autonomy, speciality, and political neutrality of education and the autonomy of university shall be guaranteed under the conditions as determined by Act.” According to the Higher Education Act, a university has the president or the dean (Article 14(1)), the president or dean shall exercise overall control over school affairs, supervise affiliated school personnel, and guide students (Article 15(1)).

Article 24 of the Public Educational Officials Act provides that the head of a university shall appoint a president on the recommendation of the Minister of Education on the recommendation of the relevant university (paragraph (1)), a university appointment recommendation committee shall be established to recommend the appointment of the head of the university (paragraph (2)); the said recommendation committee shall select a candidate for the head of the university in one manner among “the selection at the recommendation committee” or “the selection according to the method and procedure agreed upon by the relevant university teachers” (paragraph (3)); and the said recommendation committee shall delegate matters necessary for the organization, operation, etc. of the said recommendation committee to be prescribed by Presidential Decree (paragraph (4)). Article 12-2 of the Decree on the appointment of education shall recommend a candidate for the head of two or more universities to the Minister of Education by no later than 30 days before the expiration date of the appointment of a candidate for the head of the relevant university; and Article 12-2 of the Decree on the appointment of education shall be comprised of not less than 10 but not more than 50 members, who have contributed to, or

In addition, according to the Public Educational Officials Act, certain methods of election campaigns are restricted in the election of candidates for the head of a university (Article 24-2), and in the case of direct election to recommend candidates for the head of a university, the election management should be entrusted to the election commission of the Gu/Si/Gun having jurisdiction over the location of the university (Article 24-3).

B. As can be seen, the purport of the Public Educational Officials Act and subordinate statutes stipulating that a university requires a university to recommend candidates for the head of the university and a recommendation committee comprised of various members of the university concerned to recommend candidates for the head of the university by collecting the total number of members and recommending candidates for the head of the university. It is to ensure the autonomy of the university guaranteed by Article 31(4) of the Constitution by granting teachers, etc. an opportunity to participate in the election of candidates for the head of the university. The Public Educational Officials Act limits the method of election campaign in an election for the head of the university and requires the head of the university to entrust the election management to the competent election commission in the event of a direct election. Although it is aimed at ensuring fairness of the election result, the result of the fair election is based on respect to not only academic members but also the appointing authority. Furthermore, the purport that the Minister of Education recognizes the right to recommend appointment of the head of the university is to harmonize the autonomy of the university prior to the exercise of the President’s final right to appoint the head of the university.

The exercise of the right to recommend appointment by the Minister of Education shall be conducted in accordance with the purport of such system, and a candidate recommended by the relevant university will be expected to undergo a legitimate examination by the Minister of Education. However, if the Minister of Education does not request the appointment of all or some of the candidates for multiple presidents recommended by the relevant university for arbitrary reasons, it is effective to deprive the President of the opportunity to undergo examination and appointment, and thus, if this is not considered a disposition subject to appeal litigation, there is no way to relieve the rights infringed upon by objection or legal interests. Therefore, excluding all or part of the candidates for multiple presidents recommended by the Minister of Education from the proposal for appointment by the relevant university, as a disadvantageous disposition against the excluded candidates, the act of excluding

However, the Minister of Education may decide on whether to recommend a candidate for the president recommended by the relevant university or college by conducting a certain examination, and it does not necessarily require the recommendation for appointment of a specific candidate recommended by the Minister of Education. Moreover, even if the Minister of Education is a candidate recommended by the Minister of Education, the President, who is the appointing authority, does not necessarily have to appoint the president as the president. Furthermore, in the appointment of the president with broad authority over the education and operation of a university, evaluation is required as to whether a specific candidate has the ability and qualities suitable for effectively guaranteeing the autonomy and expertise of the relevant university and meeting the expectations and needs of the members in the university or college. A public educational official law only stipulates that a university or college recommends multiple candidates for the head of the university or college, and the Minister of Education or the President does not have any provision to regard that a university or college is bound by the order determined by the Minister of Education or the President, even if the Minister of Education recommends the appointment of a junior candidate for the head of the university or college, it cannot be deemed that the autonomy of the university or college is limited by this reason.

3. Review of the reasoning of the first instance judgment, which partially accepted by the lower judgment, reveals the following circumstances.

A. The Plaintiff is a professor of the pertinent university, a national university.

B. Pursuant to the “Regulations on the Selection of Candidates for the Appointment of the President of the University of this case”, the University of this case decided the Plaintiff, who obtained the largest number of votes as a result of the voting by the President Recommendation Committee, as the first president candidate, and the Nonparty, who obtained the largest number of votes following the Plaintiff, as the second president candidate, as the first president candidate. On August 8, 2014, the university of this case recommended the Defendant to be the first president candidate and the Nonparty to be the second president candidate.

C. On September 29, 2014, the Defendant sent to the instant university a document stating that “The Plaintiff and the Nonparty did not recommend the appointment because it is inappropriate for the Plaintiff and the Nonparty to be the president of the instant university.” The instant university sent a document stating that “The recommendation is changed by re-electing the president candidate within a prompt time pursuant to relevant provisions, such as the Public Educational Officials Act” (hereinafter “instant request for re-recommendation”).

4. Examining the foregoing factual basis in light of the legal principles as seen earlier, it is reasonable to deem that the instant request for re-recommendation constitutes a disadvantageous disposition that excludes all candidates for the president recommended by the relevant university from the president’s recommendation, which is subject to appeal litigation. As long as the Plaintiff is the president’s candidate recommended by the relevant university, it is matters to be determined after deliberation on what kind of grounds to restrict the appointment of the president to the Plaintiff, and how the result of examining the qualification of the president to

5. Nevertheless, the lower court determined that the Defendant’s exclusion from the recommendation for appointment of president against the Plaintiff by deeming that the right to request the president’s recommendation for appointment is not recognized under the law or sound reasoning to the Plaintiff does not constitute a disposition subject to appeal litigation. In so determining, the lower court erred by misapprehending the legal doctrine on eligibility and disposition of appeal litigation, thereby adversely affecting the conclusion of the judgment

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)