The case holding that admission and revocation of graduation, and deprivation of bachelor's degree for a person who committed the College College Ability Test did not deviate from or abuse the discretion in the admission situation of university.

The case holding that with respect to a person who completed a bachelor's degree and received a bachelor's degree after completing a bachelor's course after having taken an examination for the College College College Test, the act of cancelling admission and graduation and deprived of a bachelor's degree on the ground that the grade became null and void due to an illegal act in the College College College Ability Test, did not deviate from or abuse the discretion in relation to the admission decision of a university

Article 34 of the Higher Education Act, Articles 31, 34, 35, and 36 of the Enforcement Decree of the Higher Education Act

Plaintiff (Law Firm Seom, Attorney Kim Jeon-soo, Counsel for the plaintiff-appellant)

Defendant School Foundation (Attorney Jeong-won et al., Counsel for defendant-appellant)

January 8, 2009

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant confirmed that the defendant's act of withdrawing the admission to the management department of ○ University on March 3, 2003, which was made on August 7, 2008 against the plaintiff on March 3, 2003, cancellation of the graduation from the same university as of February 23, 2007, and deprivation of the management degree conferred on the same day is invalid.

1. Basic facts

The following facts are either disputed between the parties, or acknowledged as being based on Gap evidence Nos. 1, 2, 3, 5, 9, 10, 11, Gap evidence No. 4-1, 2, 3, Eul evidence No. 1 through 7, Eul evidence No. 8-1 and No. 2, and there are no other counter-proofs.

A. The plaintiff applied for the College Ability Test in 2003 (hereinafter referred to as the "AD Test"). The plaintiff applied for the ADD Test in 2003 and passed an occasional two semesters in 2003, based on the ADD test results notified by the president of the KET and passed an application for the ADD management department of a general student full-time college. On March 3, 2003, the plaintiff entered the college and graduated from February 23, 2007, and received a management degree on the same day. On the other hand, the plaintiff was selected as the 45th candidate for the ○ University Group of 2004 and completed all the curriculum on March 1, 2007, and is currently serving in military service.

B. In recruiting new students in 2003, the ○ University stated in Paragraph 1 of Article 1 of the Examination 2003, “If it is found that documents submitted are forged, altered, or passed by other unlawful means, he/she shall be revoked.” In addition, the ○ University demanded that the applicant be a person who satisfies the minimum academic achievement standard of not more than five comprehensive academic achievement levels in five areas.

C. On February 16, 2006, the Minister of Education, Science and Technology: (a) on the ground that the Plaintiff was making a fraudulent act by holding a mobile phone from another applicant and submitting an answer sheet from another applicant while holding the mobile phone during the year 2003, and entering it in the answer sheet; (b) on the ground that the Plaintiff was making a fraudulent act, the Minister of Education, Science and Technology invalidated the performance test in the year 2003; (c) notified the Plaintiff of the invalidity of the performance test; and (d) notified ○ University attending the Plaintiff of the invalidation of the performance test.

D. On February 27, 2006, the Plaintiff filed a lawsuit seeking confirmation of invalidity of an administrative disposition with the Seoul Administrative Court (Case No. 1 omitted) on the notification of invalidity of the above hydro testing result, but the judgment against the Plaintiff was rendered on November 29, 2006, but the appeal was dismissed on December 18, 2007 as Seoul High Court (Case No. 2 omitted), but the appeal was again dismissed on December 18, 2007, and the judgment against the Plaintiff became final and conclusive.

E. On July 22, 2008, the Ministry of Education, Science and Technology notified ○ University of the aforementioned final judgment, and demanded ○ University to report the result thereof in accordance with the school regulations. Accordingly, on August 7, 2008, the president of ○○ University operated the Defendant to revoke the Plaintiff’s admission on the ground that the Plaintiff’s entrance constitutes “in a case where the Plaintiff passed an examination by unlawful means,” under Article 51(5) of the school regulations, on the grounds that the Plaintiff’s entrance constitutes “in a case where he/she passed an examination by unlawful means,” and thus, he/she deprived the Plaintiff of the Plaintiff’s graduation based on Article 51(5) of the school regulations, and notified the Plaintiff of the above treatment on August 14, 2008

2. The plaintiff's assertion

As the cause of the instant claim, the Plaintiff made a statement to the effect that the investigative agency led to the confession that the Plaintiff committed a fraudulent act during the hydro testing. However, this was a confession made by an investigator and made a statement in accordance with the investigator's inducement while drinking hot water. The Defendant's admission to and graduation from the Plaintiff did not constitute a fraudulent act during the hydro testing, and the Defendant's act of evading a bachelor's degree was entered through an occasional charging type that does not affect the Plaintiff's success. As such, it was on the ground that the competent performance was null and void, even though the Plaintiff did not affect the Plaintiff's success, and it was more unfavorable than the benefits recovered from each revocation, the Plaintiff must take a hydro testing again and complete the college bachelor's course, and was selected as a candidate for the student of the Academy, and the qualification that the Plaintiff was involved in the Army, and thus, it is unlawful as it deviates from discretionary authority, and therefore, the Defendant's admission to the Plaintiff and the withdrawal of a bachelor's degree against the Plaintiff is invalid.

3. Determination

First, with respect to the argument that the plaintiff did not have a fraudulent act during the water-related examination, the statement of evidence Nos. 6, 7, 12, and 13 alone is insufficient to acknowledge it, and there is no other evidence to acknowledge it. Rather, in full view of the purport of the whole arguments in each of the above evidence, the plaintiff recognized that the plaintiff had a mobile phone device at the investigative agency on Jan. 29, 2005 in relation to the water-related examination conducted on Jan. 29, 2005 and submitted the answer after being transmitted from other applicants, and submitted counter-written answers. In the judgment to nullify the invalidity of administrative disposition (case No. 1 omitted) even in Seoul Administrative Court (Seoul Administrative Court No. 1 omitted), the plaintiff recognized that the above fraudulent act was committed during the water-related examination process in the year 2003, and even in the appellate court, it can be recognized that the first instance opinion was maintained

Next, with regard to the defendant's assertion that his/her entrance and graduation and his/her withdrawal from a bachelor's degree deviate from discretionary authority, it is illegal if the pertinent educational institution is a discretionary act that can be freely determined, taking into account the character, qualities, academic background, knowledge, etc. necessary to achieve educational purposes within the scope of the pertinent statutes or school regulations, and if such act considerably deviates from or abused discretionary authority (see Supreme Court Decision 97Da3200, Jul. 22, 1997, etc.). However, the plaintiff's revocation decision based on the standards for inappropriate admission set by the university itself should be respected to the extent that he/she does not infringe upon the applicant's right to receive education. Since the defendant's revocation of admission from a university, etc. is not necessary for public interest, such as equity in the examination for university admission, fair operation of the university admission system, etc., which can be realized by revocation of admission from a university, the plaintiff's rejection decision can not be seen as an unlawful act even if it had already been rejected by the plaintiff due to such reasons as above.

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 Lee Jong-jin (Presiding Judge) (Presiding Justice)