2016Guhap6641. Revocation, etc. of a disposition rejecting a proposal to appoint a senior executive;

A

The Minister of Education

September 14, 2017

September 28, 2017

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's disposition rejecting the appointment of a principal with respect to the plaintiff on March 1, 2016 shall be revoked.

1. Details of the disposition;

A. On March 1, 2012, the Plaintiff was appointed as the principal of B elementary school as of February 29, 2016.

B. On December 3, 2015, the expiration date of the term of appointment of the principal of the school submitted to the Superintendent of the Gyeonggi-do Office of Education on December 3, 2015, a letter of desire to appoint the principal as a senior teacher in the middle of the second principal, and the senior teacher in the middle of the second principal.

C. On February 1, 2016, the Superintendent of the Gyeonggi-do Office of Education appointed the Plaintiff as a senior teacher on March 1, 2016, and issued a personnel order ordering the appointment of an elementary school designated by the Gyeonggi-do Office of Education and Education.

D. On March 30, 2016, the Plaintiff filed a petition against the Defendant and the Superintendent of Gyeonggi-do Office of Education for an appeal seeking the revocation of a disposition rejecting the appointment of a principal in general or a disposition revoking the appointment of a principal in general. On May 18, 2016, the Appeal Review Committee dismissed the Plaintiff’s petition for appeal on the ground that the refusal of the Plaintiff’s appointment of a principal in general is not subject to a disposition for petition review, since the Plaintiff’s appointment of a principal in general is not recognized under the laws and regulations or sound reasoning that allows the Plaintiff to request the appointment of a principal in general, and the rejection of the Plaintiff’s petition is not subject to a disposition for petition review.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 4, purport of the whole pleadings

2. Judgment on the defendant's main defense

A. The parties' assertion

1) The defendant's assertion

The Plaintiff cannot be deemed to have submitted to the Superintendent of Gyeonggi-do a letter of wishing to appoint a principal teacher as a principal teacher or a senior teacher, and the Plaintiff has not filed an application with the Defendant for the recommendation of a principal teacher. Therefore, there is no disposition that the Defendant refused to recommend the appointment of a principal teacher against the Plaintiff. Even if the Defendant refused to recommend the appointment of a principal teacher, the Plaintiff does not have the right to request the Defendant to recommend the appointment of a principal teacher under laws or sound reasoning so the refusal of the appointment of a principal teacher does not constitute a disposition subject to administrative litigation. Therefore, the instant lawsuit is unlawful.

2) The plaintiff's assertion

Since the defendant's recommendation for appointment of the principal of a school is made through the procedure for submitting documents for appointment of the principal of the Gyeonggi-do Superintendent of the Office of Education, the defendant's refusal of appointment of the principal of a school shall be deemed to include omission that has not reached the proposal for appointment as a result of failure to submit documents for appointment from the Superintendent of the Office of Education of Gyeonggi-do. In addition, judicial review of discretionary acts is recognized, and the principal of a school whose initial term of appointment expires has the right to request a reasonable and fair examination of the appointment recommendation in accordance with the procedures prescribed by the relevant statutes.

B. Determination

1) An administrative disposition, which is the object of an appeal litigation, refers to an act under the public law of an administrative agency, which is directly related to the specific rights and obligations of citizens, such as ordering the establishment of rights or the burden of obligations with respect to a specific matter, or directly causing other legal effects. An internal act between administrative agencies does not directly affect the rights and obligations of citizens, and thus, it cannot be deemed a disposition that is the object of an appeal litigation (see, e.g., Supreme Court Decisions 88Nu9640, Jun. 27, 1989; 88Nu8540, Sept. 26, 1997).

2) According to Article 29-2(1), (3), and (4) of the Public Educational Officials Act, the principal shall be appointed by the President on the recommendation of the defendant, and the principal may be reappointed only once. With respect to a person who has completed the first term of office as the principal, an appointment authority or an appointment-recommendation authority may re-appoint or recommend the principal pursuant to Article 47, unless there is any special reason for disqualification even though the remaining period of retirement age under Article 47 is less than four years. Furthermore, according to the Guidelines for Handling Affairs for the Implementation of the first term of office (Ordinance No. 88 of the Ministry of Education) of the principal, the renewal of the first term of office shall be conducted in the order

According to the above provisions of the Act and subordinate statutes, the Defendant’s act of proposing a person to be reappointed to the President after submitting documents for deliberation by the personnel committee and the superintendent of education by the superintendent of education is an act conducted before the President, who is the appointing authority, to appoint the principal of a school by exercising his/her authority for appointment, and is merely an internal decision process between the Defendant and the President, which is an administrative agency, and does not directly result in any change in the existing status of rights, such as creation, modification, or deprivation of the rights and obligations of the people or the confirmation of the scope thereof, and thus, it cannot be deemed an administrative disposition subject to administrative litigation (see, e.g., Supreme Court Decisions 88Nu9640, Jun. 27, 198; 93Nu2315, Jul. 27, 19

In addition, insofar as the defendant's proposal for appointment as to the principal does not regard it as "the exercise of public authority as a law enforcement with regard to specific facts performed by an administrative agency", as long as the defendant's act of recommending the appointment as to the principal is not considered as "the exercise of public authority" under Article 2 (1) 1 of the Administrative Litigation Act, it cannot be seen as "the exercise of public authority", and thus, it cannot be included in the concept of "disposition" under the above provision, and thus, it cannot be subject to administrative litigation (see, e.g., Seoul High Court Decisions 2009Du30259, Apr. 15, 2010; 2014-54891, May 15, 2015; 2015Nu35705, Seoul High Court Decision 2016, 2016; 2016-5232, Jul. 21, 2015).

3) Ultimately, the instant lawsuit is unlawful, which is filed against a person who cannot be subject to an administrative litigation.

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.

The presiding judge's freeboard

Judge Lee Dong-ho

Judge Lee Jong-soo