(영문) 서울행정법원 2017.2.3.선고 2016구합73924 판결

On August 31, 2016, the defendant's disposition of revoking the pass of the K-si Office Library 6 (children's display and education) by the K-si Office of Korea on August 31, 2016 and the additional passing of the tea shall be revoked.

Reasons

1. Details of the disposition;

A. On February 2012, the Plaintiff obtained a bachelor’s degree by majoringing in folklore at C University, and on February 2014, the Plaintiff obtained a master’s degree with a major in psychology at C University graduate schools.

B. On July 29, 2016, the Defendant publicly announced the recruitment of alternative human resources banks (hereinafter “instant recruitment announcement”) on July 29, 2016.

1. A person selected in the Alternative Manpower Bank for the Alternative Manpower Bank for the next year may be employed as a temporary worker for a period of time when a temporary worker, a person on leave of absence, or a person on leave of absence, or a person on leave of absence, occurs in the second museum; 2. The recruitment area and the number of persons to be employed as temporary public officials for a period of time when the agency is required; 3. The number of persons to be employed as temporary public officials for a temporary period of time when he/she is appointed as a temporary public official at the time when he/she takes place, such as leave of absence; 3. A person who does not fall under any of subparagraphs of Article 33 of the State Public Officials Act;

4. The first method of selection: If the number of applicants is at least three times the number of applicants according to the criteria for document screening based on the resumes and evidentiary data submitted by each person before document screening, the second method of determining successful applicants shall be within three times the number of applicants: the two times the number of applicants scheduled to be selected: the number of applicants to be selected shall be the number of successful applicants to be qualified, such as the ability to perform the relevant duties and the attitude of public officials; 6. The announcement of successful applicants to be selected on August 12, 2016 and the public announcement of the place of appointment: The fixed number of applicants to be selected is not the number of persons with excellent evaluation results from among those who do not meet the standards for examination; 1. The fixed number of applicants to be a public official in a fixed term position: The fixed-term position shall not be the number of public officials who have been selected on August 17, 2016; 2. The fixed number of applicants to be a public official in a fixed term position and a fixed-term public official: The fixed-term official working period of up to 1.

C. The Plaintiff is a public official of 6(children’s Exhibition and Education) on the temporary term of office (hereinafter “special officer”).

In the absence of any reference, the Defendant applied for the recruitment of alternative personnel banks for the class of appointment to which the applicant is to be appointed, and the Defendant deemed that the Plaintiff falls under subparagraph 3 of the qualification criteria for appointment of this case (a person who has at least one year and six months of work experience in the field of appointment after acquiring the academic academic degree) and publicly notified that the Plaintiff was final successful candidates in the field of public officials under subparagraph 6 of the term of office at the time when the Plaintiff was appointed on August 19, 2016 (hereinafter referred to as the "public notice of successful candidates in this case"), while the Defendant waivers the appointment of the final successful candidates or investigates the identity of the final successful candidates, investigation of the grounds for disqualification of public officials, investigation of the qualifications for disqualification, academic history, and public officials

When it is found to be disqualified in the employment physical examination, etc., a successful applicant may be determined in the order of next braille, and the appointment-related documents such as one copy of each career certificate, one copy of the health examination for public officials, three copies of identity statement, and three copies of written consent to provide personal information were announced.

D. As a result of examining the Plaintiff’s career after the Plaintiff’s successful candidate notice, the Defendant’s appointment standard constitutes subparagraph 3 of the qualification for appointment since the Plaintiff’s work experience in a job field to be selected falls short of one year and six months

On August 31, 2016, on the ground that it is not a case, a public official of Korea-si No. 6(hereinafter referred to as "the additional successful candidate of this case") was publicly announced as an additional successful candidate (hereinafter referred to as "the additional successful candidate of this case"), and the part for which the successful candidate of this case was revoked and the additional successful candidate of this case was added is referred to as "the disposition of this case".

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 4, purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendant's assertion

1) The defendant merely notifies the plaintiff and the non-party braille of the passing of the document screening interview and the subsequent procedures through the publication of successful applicants in this case and the publication of the additional successful applicants in this case. Thus, the publication of the additional successful applicants in this case does not constitute a disposition subject to appeal litigation.

2) Even if the Plaintiff’s successful applicant’s status is recovered due to the disposition of the instant successful applicant’s notice and the instant additional successful applicant’s notice were revoked due to the instant lawsuit, the Plaintiff’s additional successful applicant’s status cannot be immediately employed as a public official pursuant to subparagraph 6 of the temporary term of office, and may be included in the alternative human resource bank only through subsequent procedures, such as personal inquiry, physical examination, etc., and as long as Nonparty 1 was employed as a public official pursuant to subparagraph 6 of the temporary term of office after September 27, 2016, the Plaintiff has no legal interest in seeking the revocation of the additional successful applicant’s notice.

B. Determination

1) The disposition taken by the public notice of the additional successful applicant of the instant case

An administrative disposition, which is the object of an appeal litigation, refers to an act of an administrative agency’s public law, which is an act of ordering the establishment of a right or an obligation under laws or regulations, or giving rise to other legal effects, and an act that does not directly cause legal changes in the legal status of the other party or other related persons, is not an administrative disposition that is subject to appeal litigation (see, e.g., Supreme Court Decision 2001Du10578, May 17, 2002). According to the recruitment notice of this case, the defendant decided that the plaintiff with the highest rating performance among those who do not fall under the standards for failure through a competitive recruitment examination for the first and second interviews is the final successful candidate on August 19, 2016, which is based on Article 28(2)2, 3, and 10 of the State Public Officials Act and Article 29(1)1-2 of the Decree on the Appointment of Public Officials.

According to Article 29 (1) 1-2 of the Decree on the Examination for Appointment of Public Officials, where a person falling under Article 28 (2) 2, 3, or 10 of the State Public Officials Act is employed as a temporary public official, such as a public official under Article 28 (1) 6 of the Presidential Decree on the Examination for Appointment of Public Officials, a document screening and an interview shall be conducted as prescribed by the Minister of Personnel Management. Article 30 of the Decree on the Examination for Appointment of Public Officials provides for the decision of passing a career competitive recruitment examination and provides for the decision of passing a career competitive recruitment examination, if it is necessary to fill any vacancy due to such reasons as waiver of the final successful applicant's appointment, etc., the additional successful applicant can be determined within 3 months from the date the successful applicant is announced as the final successful applicant. Since each of the above provisions assumes that the term "final successful applicant stated in the public official notice, public notice, and additional successful candidate notice" is not written by the defendant's mistake, but based on each of the above provisions, the plaintiff's right to undergo a new recruitment examination.

2) Legal interest

The plaintiff and the non-party braille are competing applicants for a competitive recruitment examination that select one-time public official in accordance with the recruitment notice of this case, and thus, the additional pass disposition on the non-party shop is bound to be the revocation disposition for the plaintiff. If the additional pass disposition on the non-party shop braille is revoked, the plaintiff shall recover the status of the person who passed the document screening and interview even without the defendant's separate disposition and acquires the right to be employed as a non-permanent public official in a fixed term position in the future, so there is no interest in the plaintiff's lawsuit seeking cancellation of the disposition of this case. Accordingly, this part of the defendant's safety defense is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) procedural illegality

The Defendant violated Articles 21 through 24 of the Administrative Procedures Act and Article 45-2 (2) of the State Public Officials Act by failing to give written notice to the Plaintiff and giving the Plaintiff an opportunity to present his opinion.

2) substantial illegality

Although the plaintiff satisfies the qualification criteria for appointment of this case, the disposition of this case, which was different from this premise, is unlawful.

A) Standard for appointment of the instant case

The plaintiff majored in the field of cultural psychology at a graduate school, and the psychology is closely related to the department of education that is recognized as the department related to the field of appointment of public officials of the short-term office No. 6 in the recruitment announcement of this case.

B) Standard for qualifications for appointment of this case

The plaintiff has at least one year and six months of work experience in related fields, such as the F Museum Education Instructors, G Museum Education Assistant Instructors, and H-dotons. Since folklores have majored in universities, it is closely related to the museum department recognized as the department related to the field of work for which public officials are to be appointed at the time of temporary appointment under the recruitment announcement of this case, the plaintiff constitutes "a person who has at least six months of work experience in related fields after obtaining a bachelor's degree related to the field of work to be appointed."

C) Standard for appointment of the instant case

As seen earlier, the Plaintiff is a person with at least one year and six months of work experience after obtaining a bachelor’s degree.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination of procedural illegality

Article 3 (2) 9 of the Administrative Procedures Act provides that "matters deemed difficult or unnecessary to complete administrative procedures due to the nature of the relevant administrative action, such as referral, arbitration, finance, and other dispositions under the Acts and subordinate statutes, and matters prescribed by Presidential Decree, which have undergone procedures equivalent to administrative procedures, for the purpose of conscription under the Military Service Act, naturalization for recognition of refugee status of foreigners and entry into and departure from the Republic of Korea, disciplinary action under the Acts and subordinate statutes related to public officials, or adjustment of interests under the relevant Acts and subordinate statutes, and matters prescribed by Presidential Decree," and Article 2 (9) of the Enforcement Decree of the same Act provides that "matters to be conducted

As seen earlier, the instant disposition is based on the State Public Officials Act, the Decree on the Appointment of Public Officials, the Decree on the Appointment of Public Officials, the Decree on the Examinations for Appointment of Public Officials. The instant disposition constitutes a case where it is difficult or unnecessary to undergo administrative procedures, such as prior notice, due to its nature, because it constitutes “matters to be conducted according to the results of an examination” under Article 2 subparag. 9 of the Enforcement Decree of the Administrative Procedures Act, because it constitutes “matters to be conducted according to the results of an examination for replacement personnel banks of public officials No. 6 of the Han-term Office Office No. 300, the instant disposition

Meanwhile, Article 45-2 (1) of the State Public Officials Act provides that "the head of the agency conducting the examination may suspend, invalidate, or revoke the relevant examination, as prescribed by Presidential Decree, with respect to a person who commits an unlawful act prescribed by Presidential Decree, such as having another person apply for an employment examination, promotion examination, or other examination on behalf of another person." Article 45-2 (2) of the State Public Officials Act provides that "the head of the agency conducting the examination shall notify the relevant person of the details of and the reason for the disposition under paragraph (1) (excluding the suspension of the examination) and give him/her an opportunity to explain in advance." Article 45-2 (2) of the State Public Officials Act provides that "Where he/she intends to revoke the passing of the examination, he/she shall give him/her an opportunity to explain in advance, taking into account that there is a lot of room for dispute about whether to recognize a fraudulent act

Therefore, this part of the Plaintiff’s assertion on a different premise is without merit.

D. Determination as to substantive illegality

1) Whether the qualification standard for appointment of this case constitutes subparagraph 1

The plaintiff asserts that education is included in the department related to the field of work of public officials of 6 on the short-term office term under the recruitment announcement of this case, but the education psychology is included in the field of education, so the plaintiff who has obtained a master's degree in the field of work is also a person who has

However, according to the purport of this Court's "the individual evaluation table and evaluation decision table for each document screening type" and the whole argument, the defendant selected two external examiners after the public notice of recruitment of this case, and conducted a document screening, and the plaintiff did not fall under subparagraph 1 of the qualification for appointment of the case.

However, determination on the applicant's ability, eligibility, etc. in the process of appointment as a public official is dependent on the high level of culture, knowledge, and experience of examiners, and only belongs to the free discretion of examiners, and such determination cannot be deemed unlawful unless it significantly deviates from and abused discretionary authority (see Supreme Court Decision 2008Du8970, Dec. 24, 2008). ① Education is not only an educational psychology, but also an overall field such as educational philosophy, educational social science, educational engineering, educational administration, educational administration, curriculum, evaluation, and class studies, and so on. Among these studies, it is difficult to view that the Plaintiff’s major in the course of education as an educational field formed by combining the pedagoology and psychology theory as an educational field. ② It is difficult to see that the Plaintiff is not a public official in the course of appointment as a public official in charge of education, and that it is difficult to recognize that the Plaintiff is not a public official in charge of education in the course of appointment as a public official in a college of education, and that it seems that the Plaintiff is not a public official in charge of education curriculum.

Therefore, this part of the plaintiff's assertion is without merit.

2) Whether the qualification standard for appointment of this case satisfies subparagraph 2

Next, it can be seen that folklore majored by the Plaintiff in a faculty is included in the field of study of public officials in the field of duty of 6 of the temporary term of office in the case of the recruitment announcement of this case.

Article 28 (2) 9 of the State Public Officials Act provides that a graduate of a department prescribed by Presidential Decree among departments of a high school, junior college, or university (including graduate schools) related to the position to which a public official is scheduled to be appointed may be appointed as a public official by means of competition among many persons falling under the same reason after setting the requirements for application such as career in a case where a person recommended by the principal of the relevant school is appointed as a public official in the course of research or technical job series as prescribed by the Minister of Personnel Management. Article 16 (1) 9 of the Decree on the Appointment of Public Officials provides that "career competitive employment, etc. under Article 28 (2) 9 of the Act shall be defined as "high school, mining industry, fisheries, fisheries, ocean, health, sanitation, and urban planning, or a person who has a close relationship with each other with the above academic field, such as history, department, academic, art, history, folklore, and history or highly related with each other (including a graduate school)."

Furthermore, since folklore is considered to have been related to museum studies, private studies, and ancient studies, etc. by investigating, recording, and recording the religious orders according to the custom and system habits that have been transmitted from old times to the private sector, and is in itself related to the traditional culture of the nation, it is reasonable to view that the Plaintiff who majored in folklore does not constitute “person who has obtained a bachelor’s degree related to the field of duty scheduled to be appointed” as abuse of discretion.

However, subparagraph 2 of the qualification standard for appointment requires that the plaintiff be "a person with a bachelor's degree related to the field of duty to be appointed for not less than six months". As seen later, the plaintiff's related field work experience does not reach six months, so there is no illegality that the defendant does not fall under subparagraph 2 of the qualification standard for appointment.

Therefore, the plaintiff's assertion on this part is without merit.

3) Whether the qualification standard for appointment of this case falls under subparagraph 3

Article 16(6) [Attachment 4-2] [Attachment 4-2] of the Decree on the Appointment of Public Officials provides that "If a person works as a full-time or full-time employee in each remarks column, even if he/she does not work as a full-time employee or full-time employee, he/she may include all or part of the relevant period in the career meeting the qualification criteria for appointment as prescribed by the Minister of Personnel Management." According to Article 27(4) of the Decree on the Appointment of Public Officials, the necessary career as a requirement for qualification for appointment of a competitive recruitment examination for career positions, etc. shall be calculated on the basis of the final test date (if the head of the agency requesting the examination and the head of the examination agency are different from the examination agency as a requirement for appointment examination for multiple persons, the whole or part of the period of work as a non-regular employee in the field related to the expected class of appointment may be included in the relevant career as determined by the Minister of Personnel Management." According to the above provisions, the number of hours of work experience shall be recognized in proportion to each work period of more than three.

In the instant case, comprehensively taking account of the overall purport of Gap evidence Nos. 8, 10, Eul evidence Nos. 1, 2, and 12 and the overall purport of the arguments, the Plaintiff’s completion of artistic artists’ training in I from January 10, 201 to February 10, 201; the Plaintiff was commissioned as an assistant instructor of the G Museum’s education from March 9, 2015 to December 31, 2015; and paid eight hours each time of lectures between July 26, 2015 and August 30, 2015; the fact that the Plaintiff paid 3 days from the H Museum to the exhibition and education-relatedton from October 1, 2015 to January 31, 2016 to 31, the fact that the Plaintiff was commissioned from the H Museum’s 2,000 hours to 30 days from the date of education or the end of 31, 2016.

In addition to the above provisions and the purport of the argument in the above facts, it is acknowledged that the Plaintiff formally recognizes the Plaintiff’s career as an educational instructor in the G Museum and F Museum is extremely contrary to the purport of the competitive recruitment examination for career that requires the Plaintiff to have practical experience in the field of appointment. ② The Plaintiff’s career as an educational instructor in G Museum and F Museum constitutes part-time work and must be recognized as part of work experience in proportion to work hours without the need to organize a deliberative council within the scope of recognition. Even if the Plaintiff’s work experience is recognized as the Plaintiff’s work experience on the day preceding the day of appointment, the Plaintiff’s work experience in the field of appointment is 96 days (i.e., 30 days + 8 days in G Museum + 54 days in H Museum Museum + 4 days in the G Museum). ③ The Plaintiff asserts that the period of preparation as an educational instructor should be recognized as a work experience, but the preparation period is not only a subjective element that has no choice but to prepare for each instructor, and if it is recognized as a work experience period, it does not exceed one year and six months.

Therefore, the plaintiff's assertion on this part is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges

The presiding judge, judge, senior judge

Judges Nam Sung-woo

Judges Gin Jae-in

Note tin

1) Article 26-5 of the State Public Officials Act and Article 3-2 subparag. 4 of the Decree on the Appointment of Public Officials.

2) subparagraphs 1 and 2 of the qualification criteria are Article 28(2)10 of the State Public Officials Act, Article 16(6) [Attachment 4-2](3) of the Decree on the Appointment of Public Officials, and Article 3 of the qualification criteria

Articles 28(2)3 of the State Public Officials Act, 28(2)2 of the State Public Officials Act, 28(2)2 of the State Public Officials Act, and 7 of the qualification criteria

In paragraph 1 of the Schedule, each.