2015Guhap22316. Revocation of an amendment to the Public Educational Officials' Additional Points Rating Regulations (Aggravated, etc.)

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Senior Superintendent of the Provincial Office of Education;

March 22, 2016

June 2016, 21

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The Defendant’s announcement of May 21, 2015, which was made by the Gyeongnam-do Office of Education on May 21, 2015, revoked the portion of the sum of the respective additional points of “1.80” of “4. dispatch (common), six.6.6.6.6.6.6.6.6.6.6.6.6. 6.6. 6........” among the career rating table (common, etc.), “4.6.6.6.6.6.6.6.”

1. Case history

A. On May 21, 2015, the Defendant amended and publicly announced the Regulations on the Evaluation of Points for Public Educational Officials (Public Notice No. 2015-13) (Public Notice No. 2015), and the amended Regulations [Attachment 1] provides that the total of the additional points of service (common 4.2), six.6.6.6.6.6.6.6.6.6.6.6.6.6.6.6.6.6.6.6.6.6.6. (hereinafter referred to as the "Public Notice"), and Article 2 [Attachment 1] of the Addenda Article 2 of the Addenda (Public Notice No. 1] provides that the total of the additional points of service (public notice No. 2015-13, Dec. 31, 2016; the Plaintiffs were assessed as 2.1.6.18.18.218.215.215.215.21.2015.205.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 2 (including branch numbers, if any) and the purport of the whole pleadings

2. The plaintiffs' assertion

The Plaintiffs were teachers who worked or worked in island remote areas. According to the former provisions before the amendment, even if they were registered in the list of candidates for promotion or may be designated in preference to the list, they were violated the above opportunity due to the amendment of the instant notice. Since the instant notice infringes on the right of equality stipulated in the Constitution, and violates the principle of trust protection, it is unlawful for the Defendant to revise the instant notice by deviating from and abusing discretion.

3. Judgment on the defendant's main defense of safety

A. The defendant's main defense

The notice of this case does not directly affect the plaintiffs' rights or legal interests, and thus does not constitute an administrative disposition that is subject to appeal litigation.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

Any public notice, in itself, has the character to regulate the specific rights and obligations or legal relations of the people as a result of another executory act (see Supreme Court Decision 2005Du2506, Sept. 22, 2006). However, if it affects the specific rights and obligations or legal relations of the people only by the specific executory act as a rule of law, order or administrative rule with a general and abstract character, it cannot be a disposition subject to appeal litigation.

Article 14 (2) of the Public Educational Officials Act provides that the promotion or proposal for promotion of a public educational official shall be made within three times the number of vacant positions in the order of priority in the list of candidates for promotion, and Article 40 (1) of the former Regulations on Promotion of Public Educational Officials (amended by Presidential Decree No. 26833, Dec. 31, 2015) provides that the list of candidates for promotion shall be registered in the order of candidates for promotion with a high score of 70 points of career rating, 100 points of work performance rating, and 18 points of work performance rating, which are assessed as full marks of 18 points of work performance rating, and that the list of candidates for promotion shall be added to the aggregate points of each rating point under Article 40 if a public educational official is calculated as additional points in the relevant position, according to Article 41 (1) of the same Act.

In light of the relevant legal principles and provisions, the provisions related to the appraisal of service experience of public officials, such as the instant notice, do not directly change the specific rights and duties of public officials without mediating any other enforcement act. It should be deemed that there is an administrative disposition that affects the legal status of public officials only when the change of status occurs through personnel measures (registration in the list of candidates for promotion and promotion measures) of the competent administrative agency based on the rating point under the provision. Accordingly, the instant notice does not per se fall under an administrative disposition that is subject to appeal litigation because it does not directly affect the plaintiffs' specific rights or legal status, and thus, the lawsuit seeking the cancellation of the instant notice is unlawful.

Even if recognizing the disposition of the instant public notice, any unfavorable disposition against one’s will may not be instituted without undergoing an administrative litigation within 30 days from the date on which he/she became aware of such disposition pursuant to Article 53(1) of the Public Educational Officials Act, Article 16(1) of the State Public Officials Act, and Article 9(1) of the Special Act on the Improvement of Teachers’ Status. However, the Plaintiffs filed a petition for an appeal review on August 12, 2015 after 30 days from May 21, 2015, which is the date of public notice of the instant public notice, and there is no evidence to prove that the Plaintiffs filed a petition for an appeal review with the said teachers’ appeals review committee within 30 days from the date on which he/she became aware of such disposition. Thus, the instant lawsuit is unlawful

4. Conclusion

Therefore, the lawsuit of this case is unlawful and thus, it is so decided as per Disposition.

The presiding judge, the Senior Judge;

Judges Cho Jong-soo

Judges Shin Jae-young