(영문) 서울행정법원 2020.9.1. 선고 2020구합53828 판결

B. Pursuant to Article 24 of the Public Educational Officials Act and Article 12-2 of the Decree on the Appointment of Educational Officials, the pertinent university decided the Plaintiff who obtained the highest number of votes in the school election for the 8th president candidate, and the professor who obtained the highest number of votes following the Plaintiff as the 2nd candidate. On November 15, 2019, the university of this case recommended the Defendant as the 1st president candidate, and C as the 2nd president candidate.

C. On February 10, 2020, the Defendant decided not to recommend a president candidate recommended by the instant university as a result of deliberation by the Committee for Personnel Committee of Public Educational Officials under Article 24(6) of the Public Educational Officials Act. As such, the Defendant sent a letter of public notice to the instant university stating that the recommendation of the president candidate is changed within a prompt time under the relevant provisions, such as the Public Educational Officials Act (hereinafter “instant recommendation”).

D. On February 12, 2020, the university of this case sent an official document to the effect that the reason for not recommending the appointment of president candidate recommended by the Defendant through an in-school election was clearly indicated. On February 13, 2020, the Defendant sent a notice of the result of the deliberation on the candidates for appointment of president of the University (hereinafter referred to as the “Notice of February 13, 2020”), which decided not to recommend the appointment of president in comprehensive consideration of punishment, disciplinary records, etc. to the Plaintiff, and sent the following official document to the university of this case on February 26, 2020:

The president of the National University decided not to recommend the candidates for president appointment recommended by the university of this case.The president of the National University is a senior public official with broad responsibilities and authority concerning the educational operation of the university, and thus, he/she comprehensively considered the law-abiding spirit, morality, expertise, etc. of the candidates for president appointment.The specific reason for ○○ was notified to the candidates himself/herself through a letter of public notice of 2020, 13.2.

In consideration of the reputation, etc. of the candidate, it is known that the candidate will not be written in this letter.In the university of this case, the date of the principal appointment shall be fixed and recommended by re-electing the candidate for the president within a prompt time in accordance with the relevant provisions, such as the Public Educational Officials Act.

[Ground of recognition] Facts without dispute, Gap evidence 1, 4, Eul evidence 1 to 4 (including each number), the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

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

A. Summary of the main defense

The Defendant notified the Plaintiff of the decision not to recommend the appointment of the president of the university of this case directly as the president of the university of this case through the notice of February 13, 2020 and the fact that an administrative appeal and administrative litigation can be instituted. Thus, the Defendant’s act giving rise to the legal effect of excluding the Plaintiff from the proposal for appointment is the notification of February 13, 2020 under public law. Although the request for re-recommendation of this case had arrived first at the university of this case but did not recommend the Plaintiff, it is merely the follow-up

Therefore, the lawsuit of this case seeking revocation of the request for re-recommendation of this case is unlawful as it lacks the eligibility of an appeal litigation.

B. Determination

1) The issue of whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstractly and generally. In a specific case, an administrative disposition is an enforcement of law with respect to a specific fact conducted by an administrative agency as a public authority, which directly affects the rights and obligations of the people, in mind, with the content and purport of the relevant Act and subordinate statutes, the subject, form, and procedure of the act, substantial relation between the act and disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law and the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see, e.g., Supreme Court en banc Decision 2008Du167, Jan. 1, 2010).

Meanwhile, an appeal litigation may be filed by a person who has a legal interest in seeking the revocation or nullification of a disposition, etc. (Articles 12 and 35 of the Administrative Litigation Act). The other party to a disadvantage disposition is acknowledged as standing to sue as a person whose personal interest is infringed directly (see, e.g., Supreme Court Decisions 94Nu8129, Aug. 22, 1995; 2013Du27517, Oct. 29, 2015).

2) Article 31(4) of the Constitution provides that “The autonomy and professional political neutrality of education, and the autonomy of university shall be guaranteed under the conditions as determined by the Act.” According to the Higher Education Act, universities and colleges shall have the president or the dean (Article 14(1)), the president or dean shall exercise overall control over school affairs, supervise school personnel under their control, and guide students (Article 15(1)).

Article 24 of the Public Educational Officials Act shall be appointed by the President at the recommendation of the Minister of Education with the recommendation of the relevant university (paragraph (1) and the head of a university to recommend appointment of the head of the university.

The recommendation committee (hereinafter referred to as the "Recommendation Committee") shall be established (paragraph 2), the recommendation committee shall select a candidate for the head of the relevant university by one of the "Selection at the Recommendation Committee" or the "Selection according to the methods and procedures agreed upon by the faculty members of the relevant university" (paragraph 3), and the matters necessary for the organization, operation, etc. of the recommendation committee shall be prescribed by Presidential Decree (paragraph 4), and Article 12-2 of the Decree on the Appointment of Education shall recommend candidates for two or more heads of the relevant university by the Minister of Education not later than 30 days before the expiration date of the term of office, and Article 12-3 shall be comprised of not less than 10 but not more than 50 members, as prescribed by the school regulations.

In addition, according to the Public Educational Officials Act, certain methods of election campaigns are restricted in the election of candidates for the head of a university (Article 24-2), and in the case of direct election to recommend candidates for the head of a university, the election management should be entrusted to the Gu/Si/Gun election commission having jurisdiction over the location of the university (Article 24-3).

3) As can be seen, the purport of the Public Educational Officials Act and subordinate statutes requiring a university to recommend candidates for the head of the university and a recommendation committee comprised of various members of the university to recommend candidates for the head of the university by collecting the total number of members of the university and recommending candidates for the head of the university. It is to ensure autonomy of the university guaranteed by Article 31(4) of the Constitution by providing teachers, etc. with an opportunity to participate in an election campaign in an election for the head of the university and by providing an opportunity to participate in the election of candidates for the head of the university. The Public Educational Officials Act limits the method of election campaign in an election for the election of the head of the university and requires the head of the university to entrust the election management to the competent election commission in a direct election. However, the result of an election conducted fairly is based on the assumption that not only the academic members but also the appointing authority should be respected. Furthermore, the purport of recognizing the right to recommend the head of the university to appoint the head of the university is that the Minister of Education is not subject to legitimate examination or recommendation by the President before exercising the right to appoint candidates in the university.

Therefore, an act of excluding all or some of the candidates for multiple presidents recommended by the Minister of Education in a university or college from a proposal for appointment is deemed a disadvantageous disposition against the excluded candidates, which is subject to appeal litigation (see, e.g., Supreme Court Decisions 2015Du50092, Jun. 15, 2018; 2016Du57564, Jun. 15, 2018).

4) As to the instant case, the Defendant’s request for re-recommendation is to exclude all of the candidates for president appointment recommended by the instant university from the president’s recommendation, and the effect of deprivation of the opportunity for the president to undergo a review and appointment by the president of the instant university. The Defendant’s examination and evaluation on the recommendation for president appointment of the instant university is not against the instant university itself, but is not against the university itself. Thus, the instant request for re-recommendation constitutes a disposition that directly disadvantages the Plaintiff recommended as a candidate for president and is subject to appeal litigation.

5) Accordingly, the Defendant’s main defense is without merit.

4. Judgment on the merits

A. Summary of the parties' assertion

1) Plaintiff

The Defendant did not present all the grounds and reasons for excluding the Plaintiff from the proposal for appointment through the request for re-recommendation of this case. Therefore, the Defendant’s request for re-recommendation of this case is unlawful in violation of Article 23(1) of the Administrative Procedures

2) Defendant

In order to respect the Plaintiff’s reputation and protect private life, the Defendant specifically presented the reasons for the disposition by notifying the Plaintiff of 2020 and 13 February 13, 2020, separately from the instant request for re-recommendation. The instant request for re-recommendation and the notification of February 13, 2020 constitutes a single disposition, and thus, it is deemed that there was a legitimate ground presentation against the Plaintiff. Even if not, the notification of February 13, 2020 was made at a very close time to the instant request for re-recommendation and was at a very close time to the instant request for re-recommendation, and thus, the defect was cured.

B. Determination

1) Article 23(1) of the Administrative Procedures Act provides, “In cases where an administrative agency takes a disposition, it shall present the basis and reasons therefor to the parties, except in any of the following cases.” This purport is to exclude arbitrary decisions of the administrative agency and allow the parties to properly cope with the administrative remedy procedures (see, e.g., Supreme Court Decision 2018Du41907, Dec. 13, 2019). In cases where the Minister of Education deemed that candidates recommended by the university are disqualified for the appointment of presidents, he/she is obligated to specifically present to the excluded candidates that are disqualified for the appointment of presidents (see, e.g., Supreme Court Decision 2016Du57564, Jun. 15, 2018).

With respect to the instant case, the Defendant notified the president at the time of the request for re-recommendation that he did not recommend the appointment of all candidates including the Plaintiff at the time of the request for appointment of the president, and stated that only “the result of deliberation by the Personnel Committee for Public Educational Officials” was the same as seen earlier. There is no ground to deem that the Defendant’s notification sent to the Plaintiff on February 13, 2020 after the request for specific reasons for disposition was made by the university of this case, and that it actually constitutes a single disposition

Therefore, the Plaintiff, who was excluded from president’s recommendation upon the instant request for re-recommendation, could not at all have known that the Defendant was excluded from appointment by deeming himself as disqualified for any reason. As such, the instant request for re-recommendation is a disadvantageous disposition that did not present specific grounds and reasons, and is unlawful in violation of Article 23(1) of the Administrative Procedures Act.

2) The remedy of defects in an defective administrative act is not permissible in principle from the perspective of the nature of the administrative act or the rule of law. It is exceptionally permitted to the extent that it does not infringe on the rights and interests of the people in order to avoid repeating the administrative act and to protect the legal stability of the parties (see, e.g., Supreme Court Decision 9Du11592, Jun. 26, 2001).

However, it is clear in the record that the lawsuit seeking revocation was filed on February 11, 2020 on the ground that no ground was presented in the request for re-recommendation of this case, and the defendant sent a notice to the president on February 13, 2020, stating the reason why the plaintiff should be judged as disqualified after the filing of the lawsuit of this case. Accordingly, the defect that did not present the reason for disposition in the request for re-recommendation of this case was caused by the plaintiff's objection decision and interference with the appeal, and the circumstance asserted by the defendant alone is that the defect was cured.

3) Ultimately, the instant request for re-recommendation is unlawful as violating Article 23(1) of the Administrative Procedures Act, and thus ought to be revoked.

5. Conclusion

Therefore, the name of this case is reasonable, and it is so decided as per Disposition by the plaintiff.