2015Nu58692 Revocation of revocation of a request for appointment

A

The Minister of Education

Seoul Administrative Court Decision 2015Guhap51712 decided August 20, 2015

August 16, 2018

September 13, 2018

1. Revocation of the first instance judgment.

2. The instant lawsuit shall be dismissed.

3. The total costs of the lawsuit shall be borne individually by each party.

1. Purport of claim

The defendant's refusal to recommend the president of B University on December 15, 2014 shall be revoked.

2. Purport of appeal

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

1. Details of the disposition;

[Ground of recognition] Unsatisfy, Gap evidence 1, Gap evidence 2-1, 2, 3, Gap evidence 7-1 to 4, Gap evidence 8-2, Eul evidence 8-2, and the result of inquiry into Eul University of the first instance court, the purport of the whole pleadings

A. The Plaintiff is a professor of B University, a national university (hereinafter “instant university”).

B. Pursuant to the former Regulations on the Selection of Candidates for the 18th President of the University (amended by Presidential Decree No. 2215, Feb. 23, 2018), the university of this case decided that the Plaintiff, who obtained the highest number of 29 votes as a result of the voting of the committee for recommending candidates for the 18th president of the university of this case, was the first president candidate, as the second president candidate, and that the Plaintiff obtained the highest number of votes as the next 19 votes, and recommended the Defendant as the first president candidate and C as the second president candidate on November 3, 2014.

C. On December 15, 2014, the Defendant sent to the instant university a letter of official nomination stating that the recommendation of the president who recommended the instant university after deliberation by the Committee for Personnel Management of Public Educational Officials pursuant to Article 24(6) of the Public Educational Officials Act would not be recommended. However, at the instant university, the Defendant sent a letter of official nomination stating that “the recommendation of the president by re-electing and recommending the president candidate within a prompt time pursuant to the relevant provisions, such as the Public Educational Officials Act” (hereinafter “instant refusal to recommend appointment”).

2. Disposition of refusal of the proposal for appointment of this case;

A. An act of not making or recommending the appointment of president of a university of this case is merely an internal decision-making process among administrative agencies. The rejection of the recommendation for appointment of president of the university of this case does not constitute an administrative disposition that is subject to appeal litigation because it is merely a notification or concept that the university of this case would not recommend a candidate of president of a university pursuant to Article 24(1) of the Public Educational Officials Act. In addition, the university of this case only has the right to recommend the president of a university pursuant to Article 24(1) of the Public Educational Officials Act, and whether the recommendation for appointment is made is an inherent authority of the defendant, and the plaintiff who is merely a person recommended by the university of this case as president of the university of this case has no right to request the defendant

B. Relevant legal principles and statutes

1) The term "disposition, etc.", which is the object of an appeal litigation, means the exercise or refusal of public authority and other corresponding administrative actions as an enforcement of law with respect to a specific fact by an administrative agency (Article 2(1)1 of the Administrative Litigation Act); whether an act by an administrative agency may be the object of an appeal litigation cannot be determined abstractly and generally; in specific cases, the contents and purport of the relevant Acts 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; the principle of administration by the rule of law; and the attitude of the administrative agency or interested parties related to the act (see, e.g., Supreme Court en banc Decision 2008Du167, Nov. 18, 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, speciality, political neutrality, and autonomy of university shall be guaranteed under the conditions as prescribed by Act.” The Higher Education Act provides that a university shall have a president or a dean (Article 14(1)), the president or a dean shall exercise overall control over school affairs, supervise his/her school affairs, and guide students (Article 15(1)).

In other words, Article 24 of the Public Educational Officials Act provides that the head of a university shall be appointed by the President on the recommendation of the Minister of Education upon the recommendation of the relevant university (paragraph (1)), that the head of the university shall establish a recommendation committee for the appointment of the head of the university to recommend the appointment of the head of the university (paragraph (2)), that the recommendation committee shall select a candidate for the head of the university in one of the "Selection at the recommendation committee" or the "Selection according to the methods and procedures agreed upon by the relevant university teachers" (paragraph (3)), and that matters necessary for the organization and operation of the recommendation committee shall be delegated to the Presidential Decree (Paragraph (4). Article 12-2 of the Decree on the appointment of education shall recommend two or more heads of the university to the Minister of Education by 30 days before the expiration date of the term of appointment of candidates for the head of the university, and Article 12-3 of the Public Educational Officials Act shall be comprised of not less than 10 but not more than 50 members, who have much knowledge and experience in the development of the university or university.

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).

C. Determination

As can be seen, the purport of the Public Educational Officials Act that requires a university to recommend candidates for the head of a university to the Minister of Education and that a recommendation committee comprised of diverse members of the relevant university is to ensure the autonomy of a university guaranteed by Article 31(4) of the Constitution by granting teachers, etc. an opportunity to participate in the election of candidates for the head of a university by collecting the total number of members of a university and recommending candidates for the head of a university. The Public Educational Officials Act restricts the method of election campaigns in an election for the head of a university in order to elect candidates for the head of a university, and requires the head of a university to entrust the election management to the competent election commission in the event of a direct election. However, the purpose of recognizing the right to recommend the appointment of the head of a university by the Minister of Education in order to harmonize the autonomy of a university and the exercise of a real right to appoint the head of a university. Furthermore, the purpose of recognizing the authority to recommend the appointment of the head of a university is to assist the appointment of a candidate recommended by the head of a university in an appropriate manner.

The exercise of the right to recommend appointment by the Minister of Education shall be conducted in accordance with the purport of such system, and a candidate recommended by the relevant university will be expected to undergo a legitimate examination by the Minister of Education. However, the effect of depriving all or some of the candidates for multiple presidents recommended by the relevant university for arbitrary reasons is that if the Minister of Education fails to recommend appointment, it is effective to deprive them of the opportunity to undergo examination and appointment by the President. Thus, if such act is not considered a disposition subject to appeal litigation, there is no other way to relieve the rights infringed upon by objection or legal interests. Therefore, excluding all or some of candidates for multiple presidents recommended by the Minister of Education from the proposal to recommend appointment by the university shall be deemed a disposition against the excluded candidates subject to appeal litigation (see Supreme Court Decisions 2016Du57564, Jun. 15, 2018; 2015Du5092, Jun. 15, 2018; 2015Du38580, Jun. 19, 2018).

Therefore, rejection of recommendation for appointment of the president of this case constitutes a disadvantageous disposition that excludes all candidates for appointment of the president recommended by the university of this case from the president’s recommendation for appointment, which is subject to appeal litigation. The Defendant’s principal safety objection to this part is without merit.

3. Whether the lawsuit of this case is in interest

A. The defendant's main defense

The Defendant recommended C on October 13, 2016 to be the president of the university of this case upon the request for a second recommendation from the university of this case, and the President appointed C on October 21, 2016 as the president of the university of this case. Since the refusal to recommend the appointment of this case ex officio was revoked according to the Defendant’s recommendation for appointment, even if the refusal to recommend the appointment of this case was revoked upon the Defendant’s recommendation for appointment, it is impossible to reinstate and thus there is no benefit to seek cancellation

B. Facts of recognition

[Reasons for Recognition] Unsatisfy, Entry B in the Evidence Nos. 1 to 4 (including a tentative number), the purport of the whole pleadings

1) On November 19, 2015, the Defendant instructed the president of each national university, including the pertinent university, to recommend two or more candidates to the Defendant on the recommendation of the president, pursuant to Article 24 of the Public Educational Officials Act and Article 12-2 of the Decree on the Appointment of Education Officials, which stipulates that the appointment of the president shall be recommended by two or more candidates.

2) On July 7, 2016, the Defendant again requested the instant university to re-recommendation a candidate for appointment. On August 2, 2016, the Chairperson of the Selection Management Committee, on the premise that the Selection Management Committee and the Recommendation Committee, at the time of the selection of president candidates, continue to exist on October 17, 2014, requested the members of the Recommendation Committee to participate in the Recommendation Committee to be held on August 8, 2016 as the agenda item, on the premise that the Selection Management Committee and the Recommendation Committee continue to exist on October 17, 2014. The Recommendation Committee decided to re-recommendation a plaintiff 1 and 2, selected on October 17, 2014.

3) On August 17, 2016, the university of this case recommended the Plaintiff and C to the Defendant without stating the order of priority as the candidates for the 18th president of the university of this case. The attached recommendation documents contain the Plaintiff’s vote results and the fact that the recommendation committee passed the vote of the recommendation committee on August 8, 2016 at the time of the previous recommendation of the Plaintiff and C’s vote of the first president of the 18th president of the university of this case, and the second president of the university of this case.

4) On October 13, 2016, after deliberation by the Public Educational Officials Personnel Committee pursuant to Article 24(6) of the Public Educational Officials Act, the Defendant recommended that the Plaintiff and C among the Plaintiff recommended to the president of the instant university as president of the instant university (hereinafter referred to as “re-determination for appointment”) and the President appointed C on October 21, 2016 as the 18th president of the instant university (hereinafter referred to as “instant appointment disposition”).

C. Determination

The Minister of Education may decide on whether to recommend a candidate for the president recommended by the relevant university or college by conducting a certain examination, and it does not necessarily require the recommendation for appointment of a specific candidate recommended by the Minister of Education. Moreover, even if the Minister of Education is a candidate recommended by the Minister of Education, the President, who has authority to appoint universities or colleges, does not necessarily have to appoint the president as the president. Furthermore, in the appointment of presidents with broad authority regarding education and operation of universities or colleges, evaluation is required as to whether a specific candidate has the ability and qualities adequate to effectively guarantee the autonomy and expertise of universities or colleges and to meet the expectations and needs of members in the university or college. Since public educational officials-related Acts and subordinate statutes only stipulate that a university or college recommends multiple candidates for the head of a university or college, and there is no provision to regard that a university or college requires multiple candidates as being bound by the order determined by the Minister of Education or the President of the university, even if the junior Minister recommends the appointment of a candidate, this does not necessarily mean that the autonomy of the university and college is limited by the Constitution and the law.

The rejection of the recommendation for appointment of this case constitutes a disposition of disadvantage against a candidate excluded from the proposal for appointment, which becomes subject to appeal litigation as seen earlier. However, in principle, where there is a defect in the act, the agency which has issued an administrative disposition may cancel it ex officio without any separate legal basis (see, e.g., Supreme Court Decisions 85Nu664, Feb. 25, 1986; 2015Du43971, Mar. 30, 2017). Since the statutory objection period against the administrative disposition has expired, it cannot be cancelled ex officio (see, e.g., Supreme Court Decision 95Nu6311, Sept. 15, 195). The subsequent recommendation for appointment of this case is merely a disposition of disadvantage against the candidate excluded from the proposal for appointment of this case, and thus, it cannot be deemed that the subsequent recommendation for appointment of this case has been cancelled or cancelled, and thus, it cannot be deemed that the subsequent recommendation for appointment of this case has no validity or validity.

Inasmuch as the Plaintiff’s refusal to recommend an appointment, notwithstanding the recommendation for appointment in the instant case, is not continuous, the Plaintiff’s refusal to recommend an appointment, among the instant applications for appointment, may not be deemed to have been cancelled or withdrawn. However, as long as the Defendant, as a candidate excluded from the recommendation for appointment from the recommendation for appointment, by recommending the Plaintiff among the candidates, appointed C as the president, other candidates for appointment, excluding the Plaintiff from the recommendation for appointment from among the candidates, the Plaintiff, who is the candidate excluded from the recommendation for appointment, should dispute the Plaintiff’s exclusion from the appointment for the president (Article 16(2) of the State Public Officials Act, the competent Minister, as the Defendant of administrative litigation, and the benefit of litigation to dispute separately from the rejection of the recommendation for appointment and the exclusion from the recommendation for appointment by the Minister of Education, such as the instant case, is lost (see Supreme Court Decision 2016Du57564, Jun. 15, 2018).

Therefore, the above main defense of the defendant, who has no interest in the lawsuit, is justified.

4. Conclusion

Therefore, the lawsuit of this case is dismissed as it is unlawful, and the judgment of the court of first instance which accepted the plaintiff's claim on the premise that the lawsuit of this case is legitimate is unfair, and thus it is revoked and dismissed the lawsuit of this case, and it is so decided as per Disposition by applying Articles 9, 100, and 105 of the Civil Procedure Act to the burden

The presiding judge, senior senior judge;

Judges Park Jong-young

Judges Lee Jong-hwan