(영문) 서울고등법원 2016.7.19. 선고 2015누72636 판결

On January 27, 2015, the Defendant’s rejection of an application for evaluation by a unit of distance-based learning in the Plaintiff shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Quotation of the first instance judgment

The reasoning for the court’s explanation on this case is as stated in the reasoning of the judgment of the court of first instance, except in the following cases: (a) Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Parts in height:

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Violation of the Administrative Procedures Act

The Defendant violated Article 20(1) of the Administrative Procedures Act, since it did not set and publicly announce in advance the criteria for dispositions, such as allocation of points to each evaluation item applicable to the assessment assessment and assessment, while rendering the instant disposition. In addition, the Defendant merely stated that the Plaintiff received 95 points in the area of operational circumstances while rendering the instant disposition, and did not specifically present the grounds for calculation of the above points and reasons for elimination, thereby violating Article 23(1) of the Administrative Procedures Act

2) A deviation from or abuse of discretionary power

In light of the fact that the Plaintiff’s investment exceeding KRW 2.6 billion in order to develop the course of study was faced with a critical situation in which it should close down the instant disposition, and that there is no urgent reason to make the instant disposition without demanding the Plaintiff to make a correction, etc., the Plaintiff’s disadvantage resulting from the instant disposition is enormous, compared to the public interest to be achieved by the instant disposition, and the instant disposition was deviates from and abused by violating the principle of proportionality.

B. Determination

1) Determination on the assertion of violation of the Administrative Procedures Act

A) Whether Article 20(1) of the Administrative Procedures Act is violated

(1) Article 20(1) of the Administrative Procedures Act provides that "the administrative agency shall determine and publicly announce the necessary disposition standards so that they may be specifically determined and publicly announced in light of the nature of the relevant disposition." Article 20(2) of the same Act provides that "the public announcement of the disposition standards under paragraph (1) may not be made in cases where it is substantially difficult in light of the nature of the relevant disposition or where there are reasonable grounds that it is deemed that the public announcement of the disposition standards is substantially detrimental to the safety and welfare of the public, by nature of the relevant disposition." The purpose of the system of establishing and public announcement of the disposition standards is to prevent arbitrary exercise of authority by the administrative agency, thereby ensuring the transparency and predictability of administration. Thus, the administrative agency is obliged to establish and publicly announce the disposition standards to the maximum extent specifically permitted by its nature (see Supreme Court Decision 2008Du

(2) Article 3(4) of the former Act on Recognition of Credits (amended by Act No. 1329, Mar. 27, 2015; hereinafter referred to as the "former Act on Recognition of Credits") provides that "qualifications for professors or instructors who serve as the basis for recognition of recognition, learning facilities and learning courses shall be prescribed by Presidential Decree," and Article 5(1) of the former Enforcement Decree of the Act on Recognition of Credits (amended by Presidential Decree No. 26549, Sep. 25, 2015; hereinafter referred to as the "former Enforcement Decree of the Act on Recognition of Credits") provides that "the Minister of Education shall set the standards for evaluation and recognition under paragraph (2) and set the detailed standards for evaluation under subparagraph 4 of Article 1 of the former Enforcement Decree of the Act on Recognition of Credits (amended by Act No. 13229, Oct. 20, 201; hereinafter referred to as "the former Enforcement Decree of the Act on Recognition of Credits") and other matters necessary for evaluation and recognition shall be prescribed by Presidential Decree No. 14.

However, in light of the following circumstances revealed by the aforementioned evidence and the purport of the entire pleadings, it cannot be deemed that the Defendant specified and publicly announced the criteria for assessment and approval prior to the instant disposition. Moreover, the publication of the criteria for assessment and approval is difficult due to the nature of the instant disposition or there is no reasonable ground to deem that it substantially undermines public safety and welfare. Therefore, the instant disposition violated Article 20(1) of the Administrative Procedures Act.

(A) Even if both the former Act on Recognition of Credits, the Enforcement Decree of the same Act, the Enforcement Rule of the same Act, the instant basic plan and the instant evaluation manual are examined, the Plaintiff’s agency subject to evaluation and assessment, such as the Plaintiff, cannot be seen as a minimum standard for prior evaluation and assessment. In particular, under the instant basic plan and the instant evaluation manual, where the evaluation score of operating conditions is less than 70% (105%) out of 150, the individual score of each subject in the field of study without considering all of the 150 points, the evaluation score of operating conditions is the most important standard for determining whether the evaluation score of all subjects is inappropriate, and the Defendant did not disclose not only the detailed evaluation index of operating conditions, but also the criteria for granting points to each subject of evaluation (e.g., the Defendant did not make any effort to disclose the said evaluation criteria to the extent that it did not go through the standards for prior evaluation and assessment, but also did not make any effort to disclose the said evaluation criteria to the Plaintiff and the institution subject to evaluation and assessment.

(B) As such, since the specific evaluation criteria have not been published prior to the instant disposition, the Plaintiff could not have known whether it met the operating conditions at the time of the instant application for the assessment recognition, and was judged inappropriate in the area of actual operational conditions. If the Defendant had published the specific evaluation criteria in advance, the Plaintiff could have applied for the assessment recognition by supplementing the insufficient parts, and this would rather conform to the purport of the instant assessment recognition system.

(C) There is no dispute between the parties that the evaluation and assessment system is not a structure that restricts the number of educational institutions that can receive the evaluation and assessment, and it is being implemented by absolute evaluation that can obtain the evaluation and assessment if it is higher than a certain point. If the evaluation criteria or minimum standards for the evaluation and assessment are closed to the public, it is difficult to prevent arbitrary judgment by the evaluators. The actual evaluation data include items that clearly set the evaluation criteria in numerical value, but it is difficult to exclude the possibility of arbitrary judgment as they include items different according to unclear standards, such as insufficient, normal, excellent, or poorness, insufficient, insufficient, normal, high quality, etc.

(D) The Defendant asserts that, in a case where a prior announcement of the criteria for assessment recognition is made, it is consistent with the purpose of the assessment recognition system because the institution subject to assessment recognition intends to meet the minimum requirements, and thus, it does not disclose it.

However, the above problem concerns for the Defendant is to be resolved by raising the evaluation criteria to ensure that educational institutions meet the appropriate requirements, and it is not a problem that is achieved by using unstable sense of institutions subject to evaluation and assessment by disclosing evaluation criteria. Rather, the purport of the former Act is to expand opportunities for access to education for the class, which has been alienated in the field of higher education by recognizing credits that serve as the basis for recognition of academic background and obtaining a degree, to those who have completed the course of study subject to evaluation and assessment. Accordingly, the evaluation and assessment system also aims to provide high-quality education to the students in light of the fact that educational institutions are able to provide high-quality education by meeting all the conditions, including human and physical facilities, as required by the former Act and subordinate statutes on Recognition of Credits. In addition, it is more reasonable to encourage and induce the educational institutions to have facilities

B) Whether Article 23(1) of the Administrative Procedures Act is violated

(1) Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall present the basis and reasons for a disposition when it takes a disposition. This purport is to exclude the arbitrary decision of the administrative agency and allow the parties to properly cope with the administrative remedy procedure. Thus, the grounds and the extent of setting the grounds for a disposition should be determined by comprehensively taking into account the contents of the written disposition, relevant statutes, and the overall process up to the time of the disposition, and the overall process, etc., to the extent that it can be sufficiently known which grounds and reasons for the disposition were made by the parties at the time of the disposition, and that there is no particular obstacle to the administrative remedy procedure (see, e.g., Supreme Court Decision 2011Du18571, Nov.

(2) In light of the following circumstances, it is reasonable to deem that the instant disposition was rendered without presenting the grounds for the instant disposition and the grounds therefor, and thus, there was a considerable obstacle to the Plaintiff’s moving to the administrative remedy procedure. Accordingly, the instant disposition violated Article 23(1) of the Administrative Procedures Act.

(A) The Defendant, while rendering the instant disposition, made an assessment in the territory assessment of operational conditions of the Plaintiff. Whether the Plaintiff obtained the standard points for each mark, and the total points that the Plaintiff acquired were 95 points and did not pass the assessment of operational conditions, and did not disclose at all the fact-finding whether the Plaintiff obtained the specific points or the points obtained by each evaluation index, and whether the points were calculated on the basis of any factual basis. In addition, the Defendant did not present the calculation method for calculating the total points based on each evaluation index. In addition, the Defendant only stated the instant disposition in the “not more than the basic points” for six indexes among the 11 evaluation indexes in the area of operational conditions, and the “not less than the basic points” for five indexes, and did not present the calculation method for each evaluation index.

If the facts underlying the disposition, specific evaluation results, and the method of calculating points are not presented, the Plaintiff does not have any way to know the error, even if there was an error in the method of calculating points based on the facts mistakenly perceived by the Defendant. In particular, as seen in the instant case, if the application and evidentiary materials submitted by the Plaintiff are deemed basic materials for the disposition in addition to the results of the on-site investigation conducted by the person in charge of the National Institute of Lifelong Education established under the Defendant, the Plaintiff can find the grounds

(B) In addition, if the Defendant did not publish the criteria for the disposition in advance as in the instant case, the Plaintiff could not anticipate points that it can obtain by itself only with the former Act on Recognition of Credits, the instant basic plan, and the instant assessment manual, and thus, the Defendant needs to present more concrete reasons and grounds for the disposition. Nevertheless, the Defendant merely presented the instant disposition’s total points obtained by the Plaintiff, and thus, it is extremely inappropriate for the Plaintiff as to whether it calculated the points it acquired in the instant disposition.

(C) As above, inasmuch as the Plaintiff’s factual basis for the calculation of facts and points that served as the basis for the instant disposition is not known, it is reasonable to deem that the Plaintiff did not properly have been given an opportunity to contest the validity and appropriateness of the instant disposition (the Plaintiff did not directly assert the illegality of the assessment content, such as the factual basis, method of calculating points, etc. while disputing the illegality of the instant disposition in the instant lawsuit, and did not dispute the illegality of the instant disposition by asserting procedural defect or violation of the principle of proportionality. In light of this, it cannot be deemed that there was no particular obstacle to the Plaintiff’s moving to the administrative remedy procedure solely on the ground that the Plaintiff raised an objection or filed a lawsuit by asserting that the instant disposition was unlawful.

2) Sub-determination

Therefore, the instant disposition is unlawful due to the existence of such procedural defects as above. Therefore, the instant disposition should be revoked without the need to further examine the remainder of the Plaintiff’s assertion.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.