[1] Requirements for recognizing eligibility for admission to a master's degree course as "a person recognized as having an equivalent or higher academic background under the laws and regulations" under Article 33 (2) of the Higher Education Act, and the subject of determination to recognize such eligibility (=the pertinent graduate school)

[2] The validity of the act of granting master's degree to those who failed to meet the requirements for admission to master's degree courses at graduate school (i.e., the invalidation of a master's degree) and whether the principle of good faith or trust applies

[1] Article 33 (2) of the Higher Education Act provides that "a person who is recognized as having an equivalent or higher academic background under the laws and regulations" to be qualified for admission to a master's degree course of a graduate school shall not be recognized as having an equivalent academic background with the graduate of a university after completing all curricula equivalent to elementary and secondary education and university education in a foreign country or in the north of the Military Demarcation Line of Korea. In principle, the recognition of the above qualification for admission shall be determined by

[2] A person who fails to be qualified to enter a master's degree course at a graduate school under Article 33 (2) of the Higher Education Act, even if he/she was granted a master's degree after completing the course determined by school regulations, it is void as a matter of course, and the school foundation's revocation of such invalidation is merely a notification and confirmation that the act of granting a master's degree was invalid from the beginning. Thus, the principle of good faith or trust cannot be applied.

[1] Article 33(2) of the Higher Education Act; Article 70(2) of the Enforcement Decree of the Higher Education Act / [2] Article 2 of the Civil Act; Article 33(2) of the Higher Education Act

[2] Supreme Court Decision 87Meu131 delivered on April 11, 1989 (Gong1989, 728)

Plaintiff 1 and three others (Attorneys Choi Young-sik et al., Counsel for the plaintiff-appellant)

School Foundation (Attorney Lee Sung-sung et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2004Na58583 delivered on March 30, 2005

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

The grounds of appeal are examined.

1. Article 33(2) of the former Higher Education Act (amended by Act No. 6400, Jan. 29, 2001; hereinafter “ Higher Education Act”) provides that “A person who is eligible to enter a master’s degree course at a graduate school shall be a person who has a bachelor’s degree or who is recognized to have an equivalent or higher academic background by the law.” Article 70(2) of the former Enforcement Decree of the Higher Education Act (amended by Presidential Decree No. 17008, Nov. 28, 2000; hereinafter “Enforcement Decree”) provides that “A person who has completed all curricula equivalent to Korean elementary and secondary education and university education in a foreign country or north of the Military Demarcation Line and who is recognized to have an equivalent academic background with Korean graduate from a university shall be deemed to have an equal academic background with Korean graduate from a university.” Thus, a person who is recognized to have an equivalent or higher academic background by the law under Article 33(2) of the Higher Education Act and is not recognized to have qualifications for admission from a graduate school or college in principle.

Meanwhile, even if a person who fails to be qualified to enter a master's degree course at a graduate school under Article 33 (2) of the Higher Education Act receives a master's degree after completing the course prescribed by school regulations, it is inevitable to invalidate it, and the school juristic person's revocation of such invalidation is merely a notification and confirmation that the act of granting a master's degree was invalid from the beginning. Thus, the principle of good faith or trust cannot be applied (Supreme Court Decision 87Meu131 delivered on April 11, 1989).

2. According to the records and reasoning of the lower judgment, Defendant National University of Korea (hereinafter referred to as “political graduate school”) granted admission to a master’s degree program from Defendant National University of 20. The National University of 20th, after having interview with documents, decided to revoke the Plaintiffs’ entrance permit if the Plaintiff did not return to Korea. Political graduate schools confirmed that the Plaintiffs’ bachelor’s degree was granted by telephone. On September 3, 1999, the Plaintiffs received official notices from Switzerland University of the bachelor’s degree program, which was issued by the Korea National University of 2nd, and the Korea National Embassy issued the Plaintiffs’ graduation certificate and academic certificate, etc. on September 13, 199, and the Plaintiffs submitted it to the political graduate school around that time. The Plaintiffs did not complete the 10th curriculum of the Korea National University of 2nd, which was issued by the Korea National University of 3rd National University of 10th, which was not a branch office of the Korea National University of 2nd, and the Korea National University of 3rd National University of 20th.

In light of the above circumstances, political graduate schools recognized that the Plaintiff’s bachelor’s degree was valid, on the premise that the Plaintiff’s degree was recognized as valid. However, inasmuch as the Plaintiff declared invalidation of a bachelor’s degree, which is the premise for recognition of qualification for admission, the Plaintiffs cannot be deemed to have the qualification for admission to a master’s degree program under the Higher Education Act and the Enforcement Decree, and thus, the Defendant’s revocation of the granting of a master’s degree, which is the act of invalidity of the above, cannot be deemed to go against the principle of trust protection.

Nevertheless, the court below's decision that the plaintiffs' bachelor's degree is valid, and that the defendant's revocation of the master's degree is illegal and invalid against the principle of trust protection is erroneous in the misapprehension of legal principles as to the violation of the Higher Education Act and the principle of trust protection, and it has affected the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)