205Nu1815 Revocation of Disposition of Refusal

민 ㅇㅇ

대전 ○구 ㅇㅇ동 ㅇ○아파트 ㅇ0동 O○호

Attorney Lee Jae-soo et al.

Superintendent of the Office of Education of Daejeon Metropolitan City

소송수행자 서0,임ㅇㅇ

Daejeon District Court Decision 2005Guhap267 Decided September 7, 2005

July 6, 2006

August 3, 2006

1. Revocation of a judgment of the first instance;

2. On January 31, 2005, the Defendant’s decision that the Plaintiff failed to pass the competitive examination for appointment as a qualified senior teacher shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On November 30, 2003, the plaintiff applied for the general social subjects selected by 16 of the 2004 candidate selection examination for teaching teachers in public and secondary schools in Daejeon Metropolitan City, Daejeon Metropolitan City, and dealt with the first test (this year's first test in 2004, and other academic years' competition tests also take 90.53 points. However, on January 3, 2004, the plaintiff was subject to a disposition of non-compliance with the defendant on January 3, 2004, since it fell short of 91.97 points for the first test.

B. However, in the first examination of the year 2002 where the Defendant previously conducted it, the Constitutional Court determined that the above additional points are unconstitutional on the grounds that the granting of 3 to 5% additional points to the graduates and prospective graduates of local colleges of education, Korean teachers’ college graduates and prospective graduates from high schools in Daejeon and admitted upon the recommendation of the Superintendent of the Office of Education, and the holders of multiple and sub-major teachers’ licenses, etc. on March 25, 2004, based on the decision of 2001Hun-Ma882 on March 25, 2004, the above additional points are relatively limited to the voluntary opportunity for other applicants to take public office without any legal basis.

C. Accordingly, on April 2, 2004, the plaintiff filed a lawsuit against the defendant on the ground that the additional points in the first examination for the year 2004 (hereafter referred to as "additional points" in this Article) are unconstitutional, and that the plaintiff could pass the first examination for the year 2004Guhap918, which was the method of Daejeon District Court 2004Guhap918, and that the plaintiff could pass the first examination for the year 2004. The plaintiff's examination result was found to have passed the first examination for the number of 21 persons selected as the first successful candidates. On May 19, 2004, the above court accepted the plaintiff and the defendant's first examination for the plaintiff on January 3, 2004 that the plaintiff should pass the first examination for the appointment of the middle school teacher as a candidate for the appointment of the plaintiff, and the defendant should recommend the plaintiff to compromise each of the litigation costs.

D. On June 25, 2004, the defendant revoked the disposition of failure to pass the first examination against the plaintiff on June 25, 2004 in 2004, and additionally selected the plaintiff as a successful applicant in the first examination in 2004, and recognized the additional successful applicant in the year 2005 as a successful applicant in the second examination. If the applicant does not take the second examination, the defendant is deemed to waive the opportunity to take the second examination granted by the defendant. The defendant publicly announced that the detailed protocol of the additional successful applicant in the first examination will be determined through a subsequent consultation with the whole country.

E. After that, on November 1, 2004, the defendant publicly announced the 2005-2005-2005-2005-2005-2005-200-2000-200-200-200-200-20-200-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-30-30-20-20-30

F. On January 31, 2005, the plaintiff applied for the second examination in 2005, such as essay writing, interview, and class room skill test, in accordance with the above implementation outline. The defendant applied for the second examination in 2005, such as the plaintiff's total score 134.34 points, on the ground that the plaintiff did not reach the number of applicants for the second examination in 2005, 139.34 (the number of applicants who passed the second examination including added points is 142.34 points) on the ground that he did not reach the number of applicants for the second examination in 2005.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, 10, and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The parties' assertion

(1) Defendant

The defendant prepared a plan to deal with the additional successful candidates of this case in accordance with the recommendation for reconciliation of the final successful candidates of the revocation of the revocation of the revocation of the revocation of the revocation of the revocation of the above Daejeon District Court 2004Guhap918, the plaintiff's total points in the plaintiff's decision was made for the purpose of remedying the plaintiff's right since the defendant exempted the final successful candidates of the first examination of the year 2005 and exempted the final successful candidates of the year 2004 and the year 2005 from either of the final successful candidates' points, even if the plaintiff's decision was made whether or not to pass the examination, which is not a big benefit for the plaintiff, and rather, the plaintiff's disposition of this case's decision was legitimate because the plaintiff's total points in the major subjects forming a low level between 70 and 80, which are higher than the final successful candidates, can be more favorable to the plaintiff, and the plaintiff's decision of this case's failure to pass the second examination of the year.

(2) Plaintiff

The defendant could have sufficiently predicted that the successful candidates of the first examination in 2005 are likely to have a big difference compared with the successful candidates of 2004 in the second examination due to the difficulty of the examination and the reduction of the number of selected students, and therefore, in preparing the measures to deal with the additional successful candidates of this case, there should have been reasonable measures to prevent additional successful candidates, including the plaintiff, from causing any damage to the plaintiff. However, in preparing the measures to deal with the additional successful candidates of this case, the defendant, in preparing the measures to deal with the additional successful candidates of this case, calculated the total points by simply adding the points obtained from the first examination in 2004 and the points obtained from the second examination in 205 in the second examination in the second examination in the second year in the second year in the second year in 205, so that the defendant's failure to pass the second examination in the second examination in the second year in the second year in the second year in the second year in the second year in the second year in the second year in the second year in the second year in accordance with the plaintiff's duty of care and right to equality.

(b) Facts of recognition;

(1) On October 22, 2004, the defendant presented an opinion to the effect that "A decision on whether to pass an additional test in the year of 2004 should be made in accordance with the first and second stages of the selection test," prior to the public announcement of the 2005's 'the first step of the selection test for public secondary school teachers in Daejeon Metropolitan City'. On the same day, the plaintiff presented a remedy plan for the additional successful applicants including the plaintiff. The plaintiff, through the electronic mail, is aware that the cancellation of the non-qualified decision" to the defendant is not simply the first step and the exemption of the first step test, but rather the legal effect would be retroactive to the first step of the selection test." However, the defendant, on November 1, 2004, included the supplementary treatment plan in the above implementation outline.

(2) Even in 2004, when the first examination was conducted by each metropolitan local government for the selection of secondary school teachers, the first examination was conducted to exclude additional points in other areas in accordance with the implementation of the system of granting additional points, and the first examination was conducted to set the first examination result, and the second examination was conducted to publicly announce the outline of the first examination for appointment of secondary school teachers in 2005 as well as a remedy similar to the first examination for the first examination for appointment of secondary school teachers in 205.

(1) Gyeongnam: Successful candidates shall be able to select one of the primary test results and the primary test results in the year 2004 and the year 2005, and successful candidates shall be those who have the total points of the primary test results selected by them and the secondary test results in the year 2005 exceed the successful candidates in the year 205.

(2) Gwangju and Jeju: Shall pass the examination where the total points of the examination results in the second examination in the year 2005 exceed the successful candidates in the second examination in the year 2005 after awarding the lowest points to the successful candidates in the second examination in the year 2005.

3. Seoul, Gyeonggi, Ulsan, Jeonnam, Chungcheongnamnam: The same shall apply to the defendant's measures to process the additional successful candidates of this case.

(4) Gangwon-do, North Korea, Jeonbuk-do, Incheon, Busan, and Daegu: There is no relevant matter since there is no further successful applicant.

[The Seoul Special Metropolitan City shall, in determining successful candidates for the second examination for selecting elementary school teachers in 2005, take measures to aggregate the first examination scores for the second examination for the second grade 2005 plus the second examination scores for the second grade 2005, while excluding all the additional examination scores for the first grade 2004 and 2005 for the civil petitioners' successful candidates, such additional examination scores for the second grade 2005 plus the first examination scores for the second grade 2005 for the civil petitioners' successful candidates, and if the first grade 2005 and the second grade 205 are found to have passed the second grade examination for the second grade 200, the second grade examination scores for the second grade 200, and if the second grade examination results for the second grade 200, the second grade examination scores for the first grade 300, which are those for the second grade 200, are found to have failed to pass the second grade examination for the second grade 30,000.

(3) The plaintiff is 90.53 points (27, etc.) below 91.97 points when it was included in the first examination for the year 2004 when it was selected 21, and 18 points when it was excluded from the failure or additional points. The second examination point for the year 2005 when it was 43.81 points and falls under 2, etc. (the plaintiff is 1). However, the plaintiff is 6 points when it was 139.34 points when it was 139.34 points when it was final successful candidates for the year 2005 (the first 6th 4th 6th 6th 6th 4th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 106th 6th 6th 4th 6th 205.

[Reasons for Recognition] Facts without dispute, Gap evidence 7, Gap evidence 8-1, Gap evidence 9, 10, Gap evidence 11-1, 2, 3, Gap evidence 12-1 through 4, Gap evidence 13-1 through 6, Gap evidence 14-1, 2, and 3, and the purport of the whole pleadings.

C. Determination

(1) There is a question as to whether a decision of recommending reconciliation under the Civil Procedure Act is permissible in an appeal litigation. However, if the decision became final and conclusive as the parties did not raise an objection despite the court’s decision of recommending reconciliation to the same purport as seen above, the defendant administrative agency should have publicly expressed the intent to take a disposition according to the court’s decision of recommending reconciliation, and barring any special circumstance, the defendant administrative agency should bear the duty under the good faith principle to take such a disposition against the plaintiff, who is the other party to the disposition, unless there is a special reason.

(2) On the other hand, as seen above, the system of granting additional points to the competitive examination for the appointment of secondary school teachers was unconstitutional around March 2004, and the year 2004, which was implemented with additional points as it was decided as unconstitutional around March 2004, the decision of the Daejeon District Court to revoke the decision of recommending reconciliation that the plaintiff would have passed if the additional points were not given at the first examination, and the notice of the plaintiff's additional successful applicants taking advantage of the decision, and the notice of the measure to treat the additional successful applicants of this case, all of which were to eliminate the plaintiff's disadvantage that was unable to apply for the second examination even in 204.

However, the measure to deal with the additional successful applicants of this case prepared by the defendant is determined separately from the number of successful applicants in the year 2005, and it is determined that the existence of the additional successful applicants is not intended to have any particular effect on the general applicants in the year 2005.

However, in the method of calculating the results of the decision on the additional successful candidates, even if the first 204 year reflects the absolute score of the examination results in the first 2005 year, and at the same time, with respect to the additional successful candidates such as the plaintiff, the final successful candidates shall be determined as the successful candidates in the 2005 year, and the final successful candidates in the 205 year also decided as the final successful candidates in the 205 year. This would result in unreasonable circumstances that the plaintiff, who is the additional successful candidates, would not be able to compete with the general applicants in the 205 year year 205 year 205. The plaintiff's final successful candidates' 205 year 2005 year 205 year 34 year 2005 year excluding the above final successful candidates' final successful candidates' 3 years 4 years 5 years 50 years 130 years 4.5 years 7 years 1, 2005.

In light of these circumstances, the method of calculating the sexual calculation for the determination of the additional successful applicants among the method of processing the additional successful applicants in this case is deemed to be considerably lacking in rationality (this is clear in light of the case of other local governments in this case).

(3) The duty of disposition under the good faith principle to be borne by the Defendant according to the above decision of recommending reconciliation is to eliminate the disadvantages arising from the failure of the first examination, which was caused to the Plaintiff as a result of the unconstitutional point of 2004 as a result of the unconstitutional point of view. It does not mean that the Plaintiff simply exempt the Plaintiff from the burden of the first examination, thereby removing the disadvantages incurred to the Plaintiff formally.

Therefore, in order for the Defendant to fulfill the obligation under the good faith principle according to the above reconciliation recommendation decision, the additional points grant system should be implemented, and the year 2004, which resulted in the Plaintiff’s failure to pass the first test, should also be taken measures to substantially eliminate the disadvantages arising from the failure to pass the examination. The Defendant failed to perform such obligation by prescribing the method of calculating the sexual calculation for the decision on the additional successful applicants among the plans to process the additional successful applicants in the instant case, as seen above, and the degree of unreasonable degree is considerably difficult to understand as seen above. Accordingly, the Defendant exercised a defective discretion in determining the method of selecting the additional successful applicants, including the Plaintiff, in 205 as to the additional successful applicants including the Plaintiff, in 205, the instant disposition also constitutes an illegal disposition deviating from or abusing the discretionary power.

[Additional, as seen above, we examine whether the Defendant’s method of sexual calculation for determining the Plaintiff’s success enters within the scope of the exercise of legitimate discretion. In addition, we examine whether the Plaintiff obtained a grade within the right of pass in the first test in 2004, as seen above.

If it is impossible to prevent the plaintiff from applying for the second examination for the year 2005, it is necessary to have the plaintiff participate in the second examination for the year 2005 without being affected by any increase in the number of successful applicants for the first examination for the year 2005, and to have the plaintiff participate in the competition under the same conditions as the general applicants for the second examination for the year 2005, as in the year 2005, as in the first examination for the year 2005, the plaintiff should have the same status as having obtained the results in the first examination for the year 2004. In order to give this status to the plaintiff, the plaintiff's 204 year 2005 should also be added to the first examination for the year 2005 year 205 year 205 year 205 year 205 year 205 year 205 year 205 year 205 year 205.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance which has concluded otherwise is unfair, so it shall be revoked, and it shall be decided as per Disposition with the decision to cancel the part of this case.

Kim Chang-suk (Presiding Judge)

Park Byung-ho

Isi-Name