(영문) 대전지방법원 2018.1.24. 선고 2017구합104209 판결

A. On March 1, 1989, the Plaintiff served as a teacher, a scholarship (research), and an assistant principal by February 28, 2013, after being newly appointed as a teacher belonging to the office of education of Chungcheongnam-do.

B. On May 18, 201, the Superintendent of the Provincial Office of Education of Chungcheongnam-do imposed a reprimand and a surcharge for disciplinary action on the ground of the Plaintiff’s misconduct that the Plaintiff received KRW 1,200,000 from parents-related organizations three times in three times in 2010 (hereinafter “instant disciplinary action”). Meanwhile, the instant disciplinary action record was cancelled on May 18, 2014.

C. After being appointed as the principal on March 1, 2013, the Plaintiff served as the principal of B elementary school and C elementary school (the term of office from March 1, 2013 to February 28, 2017).

D. On March 1, 2017, the Plaintiff, to the Superintendent of the Provincial Office of Education on March 1, 2016, the name of the middle-standing principal on March 1, 2017, and on January 11, 2017, the Superintendent of the Provincial Office of Education recommended the Plaintiff to the Defendant as the person subject to recommendation for appointment as the middle-standing principal, but the Defendant excluded the Plaintiff from the person subject to recommendation for appointment as the middle-standing principal on the ground that there was the above misconduct (money and valuables, and entertainment) on January 1, 2017.

E. Accordingly, the Plaintiff was not appointed as the principal, and was appointed as the senior teacher on March 1, 2017.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 5 (including branch numbers in case of additional number), the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Determination on this safety defense

A. The defendant's main defense

The lawsuit in this case is unlawful, since it is difficult to deem that the Plaintiff has the right to file a heavy appeal for the principal, there is no rejection disposition accordingly.

B. Determination

1) If an administrative agency’s refusal to take action following a citizen’s affirmative filing of an application constitutes an administrative disposition that is subject to appeal litigation, the filing of the application must be an exercise of public authority or an equivalent administrative action; the refusal must cause changes in the applicant’s legal relationship; and the citizen must have the right to request the exercise of the action (see, e.g., Supreme Court Decisions 96Nu14036, Jul. 10, 1998; 2007Du1316, Oct. 11, 207; 2007Du1316, Oct. 11, 207); the existence of the right to request the recognition of the disposition of refusal should be determined abstractly in light of the applicant’s recognition of such right by interpretation of the relevant laws and regulations; the applicant’s refusal to take action beyond a mere response to the application should not be deemed to have been subject to appeal litigation; thus, the determination of which is based on an individual’s refusal to take part in an administrative appeal 29060.16

2) Article 29-2(2) and (3) of the Public Educational Officials Act provides that the term of office of the principal of a school shall be four years and may be reappointed only once, and Article 29-2(1) through (3) of the same Act and Article 9-5(1) of the Decree on the Appointment of Educational Officials may be reappointed to the principal of a school who has completed the first term of office unless there is any special reason for disqualification. Article 3 of the Guidelines on the Implementation of the first term of office of the principal and the principal of the school shall provide that the person subject to the second term of office may be reappointed to the principal of a school unless there is a special reason for disqualification. Article 3 of the Guidelines on the Implementation of the first term of office of the principal and the principal of the school shall deliberate on whether there is any special reason for disqualification for each individual with respect to the principal of a school who is in the middle term.

3) In full view of the above provisions, the principal whose primary term of office expires may be deemed to have the right to request the President, who is the person who has the authority to appoint and dismiss, to make a reasonable and fair review on whether or not the principal is in heavy service in accordance with the procedures prescribed by relevant Acts and subordinate statutes. In other words, the Plaintiff has the right to file an application under the relevant Acts and subordinate statutes or sound reasoning, which requires reasonable and fair review on whether or not the principal has been in heavy service, and to request a reasonable and fair review on whether or not the principal has been in advance. Therefore, the Plaintiff’s right to file an application under the relevant Acts and subordinate statutes or sound reasoning should be deemed to fall under the disposition that is subject to appeal litigation (hereinafter “instant disposition”). The Defendant’s defense on safety is without merit.

4. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition shall be revoked for the following reasons.

1) Although the instant disciplinary action was cancelled, the Plaintiff refused to be the principal on the ground that he was subject to the instant disciplinary action, and that he did not conduct an intensive examination of the principal on the ground that he was subject to the instant disciplinary action against the Plaintiff.

It infringes on the authority of the personnel committee to examine, violates the contents of superior laws and regulations, and is against the principle of trust protection against the statement of opinion on the neutrality due to the promotion of the principal of the school on March 1, 2013, and is also in violation of the principle of proportionality and constitutes deviation and abuse of discretionary power.

2) The instant disposition did not receive prior notice from the person having the authority of disposition prior to the disposition, and there was no basis and reason for the disposition from the person having the authority of disposition at the time of the disposition. Therefore, there was procedural error in violation of Articles 21 and 23

B. Determination

1) Whether the discretionary authority is deviates or abused

In full view of the following circumstances, the contents of the relevant statutes and the purport of the entire argument, it cannot be deemed that there was an error of law that deviates from or abused the discretion of the instant disposition. The Plaintiff’s assertion on this part is without merit.

A) As seen earlier, Article 29-2(1) through (3) of the Educational Officials Act and Article 9-5(1) of the Decree on the Appointment of Educational Officials provide that “The President may again appoint a principal who has completed the first term of office unless any special ground for disqualification exists to the principal.” In light of the form and content of the above statutes, it cannot be deemed that the former president must appoint a principal as a principal on the ground that the former principal constitutes a discretionary act, and the latter applicant does not have any special ground for disqualification.

B) Whether to select a middle-standing teacher according to any criteria is related to personnel policies, and given its nature, a wide range of discretion has been granted to the President, who is the person who has the authority to appoint and dismiss the principal. Therefore, the personnel committee for Chungcheong-do public educational officials determined the Plaintiff as an eligible person to be a middle-standing teacher, and it is not bound by the President.

C) Considering the overall control of school affairs, guidance and supervision of affiliated school personnel, and the principal’s duty contents, etc., the principal requires a high level of morality along with his/her ability to perform his/her duties and organizational leadership. The fact that a person to be reappointed as the principal has committed misconduct related to the receipt of money and valuables or entertainment constitutes a circumstance to suspect the qualities required by the principal. The Plaintiff’s disciplinary records have been cancelled, and the Plaintiff’s disciplinary records of the instant disciplinary action do not lose itself or the instant wrongful facts themselves. The instant disposition is not a disadvantageous measure against his/her position according to the validity of the instant disciplinary action, but is merely a result of the discretionary determination by the appointing authority, taking into account the above improper facts, etc.

D) Even if the Plaintiff did not select as the principal of the school, he can serve as a senior teacher at the retirement age. Thus, it does not lead to harsh results, such as deprivation of the status of a teacher by the instant disposition, etc.

E) It is difficult to view that the President appointed the Plaintiff as the principal on March 1, 2013, and thereby, there was a public opinion expressing that the Plaintiff would serve as the principal, and thus, it cannot be deemed that the instant disposition violates the principle of trust protection.

2) Whether the Administrative Procedures Act is in violation

Article 3 (2) 9 of the Administrative Procedures Act and Article 2 (3) of the Enforcement Decree of the same Act provide that the Administrative Procedures Act shall not apply to matters concerning disciplinary action and other dispositions under the Acts and subordinate statutes related to the personnel affairs of public officials, which are difficult to undergo administrative procedures due to the nature of

Considering the fact that the selection of a middle-standing teacher is an area of personnel policy with a broad discretion to the person who has the authority to appoint and dismiss the principal, and that the middle-standing applicant has no ground for disqualification and is not necessarily subject to restriction of the principal, it is reasonable to deem that the rejection disposition on the middle-standing teacher application constitutes a disciplinary action or other disposition under the personnel administration-related Acts and subordinate statutes of the public official, which is difficult to undergo administrative procedures due to the nature of the relevant administrative action, and therefore, the Administrative Procedures Act is not applicable. The plaintiff'

5. 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 and assistant judge

Judges Kim Jong-ho

Judges Han Han-han

Note tin

1) The Plaintiff stated the date of disposition as February 23, 2017. However, the date of notification by the Chungcheongnam-nam Superintendent of the Provincial Office of Education that the Plaintiff was appointed as a senior teacher as of March 1, 2017 is not the date on which the Plaintiff was not reappointed as the principal. The date on which the President was not reappointed as the principal of the school is unclear. The Plaintiff filed an application for a reappointed as of March 1, 2017, but was not reappointed as the principal of the school. As such, the President expressed his/her intent not to reappointed as the principal of the school on March 1, 2017. Accordingly, the date of disposition is not clear.