[1] Whether the act of setting the method of evaluation and grading standards for the judicial examination and the military advocate selection examination constitutes the discretionary act of the Minister of Justice (affirmative), and whether the act of setting the method of evaluation and grading standards is included in the method of evaluation and the method of grading the matters determined by multiple answers (affirmative)

[2] In a case where some of the questions of the first examination for military advocates and the first examination for the appointment of military advocates are confirmed to be multiple answers, whether the method of giving marks to one of them to meet all the answers selected as correct answers is significantly unreasonable by deviating from discretion or abusing discretion (negative)

[3] In a case where some of the questions of the first examination for appointment of military advocates and the first examination for appointment of military advocates are determined to be without a correct answer, whether the method of marking to meet all answers is considerably unreasonable by deviating from or abusing discretion of administrative action (negative)

[1] In the instant examination to verify whether a judge, prosecutor, attorney-at-law or a person who intends to become a military advocate has necessary knowledge and ability, the act of setting the method of evaluation and grading standards shall be deemed discretionary act that can be freely determined by the Minister of Justice within the scope prescribed by law in consideration of the purpose, content, etc. of the judicial examination in light of the nature of expertise, policy, etc. The act of setting the grading standards shall include not only the act of selecting the answer for the given issue, but also the grading method for the issue determined in the absence of a correct answer or multiple answers. Thus, the method of grading the issue determined by the multiple answers shall not be deemed unlawful unless it is deemed that it is remarkably unreasonable because it deviates or abused the discretionary authority.

[2] In a case where it is confirmed that there are multiple answers to one issue in the judicial examination and the first examination for military advocate appointment, which provided that only one answer suitable for the purport of the text in five answers is to be selected as a correct answer, if one answer is selected as a correct answer, it shall be deemed that it constitutes an choice of a correct answer, and thus, it is the most reasonable marking method.

[3] If a final and conclusive issue becomes final and conclusive as there is no answer in the part of the first examination for appointment of military advocates, it shall be given to the examinees who selected another subject as appropriate for all answers, and even if the examination results in a relative disadvantage to all the examinees who selected the other subject, no more reasonable grading method may be found to be likely to cause any benefit or disadvantage to all the examinees, and the examination examinees who had accurate knowledge about the matter at issue at issue at issue at issue at issue at issue at issue at issue at issue at issue at issue is naturally decided to be without a correct answer, and it shall not be deemed that the grading method treated as a correct answer at issue at issue is considerably unreasonable.

[1] Articles 8 and 9 of the Judicial Examination Act, Article 27 of the Administrative Litigation Act / [2] Articles 8, 9, and 11 of the Judicial Examination Act, Article 5 of the Enforcement Decree of the Judicial Examination Act, Article 27 of the Administrative Litigation Act / [3] Articles 8, 9, and 11 of the Judicial Examination Act, Article 5 of the Enforcement Decree of the Judicial Examination Act, Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 97Nu13771 delivered on July 10, 1998 (Gong1998Ha, 2129)

Plaintiff 1 and seven others (Attorney Lee Jong-chul, Counsel for the plaintiff-appellant)

The Minister of Justice

March 16, 2004

1. All of the plaintiffs' claims are dismissed.

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

On April 29, 2003, the defendant ordered the plaintiff 1 on April 29, 2003 (which seems to have been written in writing on May 1, 2003) to revoke the 17th military advocate appointment test failure disposition and the 45th judicial examination failure disposition against the remaining plaintiffs, respectively.

1. Details of the disposition;

A. On February 23, 2003, Plaintiff 1 applied for the 17th military advocate examination (hereinafter “instant military advocate examination”), which was enforced on February 23, 2003, and the rest of the Plaintiffs applied for the 45th judicial examination that was enforced on the same day (hereinafter “instant judicial examination”). The points, total points, and average for each subject obtained in the instant military advocate examination or the judicial examination are as follows.

Plaintiff 1, an average of 87.50.50 82.50 75.00 44.00 36.00 825.25 82.50 85.00 385.00 38.00 36.50 86.00 38.63 86.50 387.50 487.50 85.07 84.0 46.0 86.0 7.0 85 87.5 87.50 87.50 87.50 87.50 87.50 84.0 87.50 84.50 7.85 7.50 87.50 7. 805 7. 8085. 850

B. After examining the passing score of the military advocate examination of this case as the total point of 325.5 and average of 81.38, the Defendant rendered an assessment of the passing score of the judicial examination as the total point of 328 and average of 82.00, the Defendant rendered a disposition of passing the judicial examination of this case against the Plaintiffs on April 29, 2003 on the ground that the passing score falls short of the passing score.

C. The same issue was established in the examination for the appointment of military advocates and the examination for the judiciary (hereinafter referred to as the “examination of this case”), and 2.5 points for each subject were allocated to 40 subjects among the subjects of the examination, and 100 points for each subject, and 25 points for each subject were assigned to 25 subjects for each subject, and 50 points for each subject. Thus, the full score of the examination of this case was 400 points for each subject (100 points x 350 points x 2). The examination of this case presented five answers for each issue, and one answer suitable for the purpose of the text among them was made as a correct answer, and was drawn for the examination applicant to find them.

D. After the completion of the instant examination, the Defendant published the examination questions and answers through the Internet homepage of the Ministry of Justice. On the following matters, the Defendant published the following 9 questions on the following 16 economic law subjects: 5) on the 16th issue of the Economic law subjects, 1) on the 9th issue of the economic law subjects, and 3) on the 9th issue of other international law subjects, 4) on the 16th issue of the intellectual property law subject, respectively.

9. Those not common to door-to-door sellers, telephone sellers, multi-level sellers, continuous transaction business operators, transactions business operators for soliciting business, etc. under the Door-to-Door Sales, etc. Act?

(1) Changing his/her address, telephone number, etc. for the purpose of interfering with termination of a contract.

(2) Coercive force on consumers with intent to force the conclusion of a contract or to interfere with the termination of a contract.

(3) Causing damage to consumers by neglecting the shortage of human resources or facilities necessary for the settlement of disputes or complaints for a considerable period.

(4) Act of unilaterally supplying goods, etc. and claiming the price for such goods, etc. without any consumer subscription.

(5) Using information on a consumer without obtaining the consent of the consumer himself/herself or beyond the extent of consent.

16. The issue is that the door-to-door seller A was solicited to purchase the door-to-door seller B, and the door-to-door seller was paid a down payment and received a delivery of the product after the door-to-door Sales, etc. under the Door-to-Door Sales, etc. Act?

(1) A may withdraw an offer of a contract within 14 days from the date on which the contract is concluded.

(2) A may withdraw an offer even if the package is opened to confirm the contents of his/her product.

(3) Where A withdraws an offer in writing, it shall take effect on the date on which a document expressing such intent is sent.

(4) No Eul shall claim damages against Gap by reason of cancellation of order.

(5) At the time of withdrawing an order by A, B shall refund the down payment already received within three business days from the date when the goods are returned.

E. Since then, the defendant received a second-time objection against the Internet examination questions and the answer questions, and thereafter, through a regular reply meeting on March 10, 2003 and on March 14, 2003, 9 items of the Economic Law, 16 items, and 9 items of international law, all of 16 items of the intellectual property law, and 16 items of the intellectual property law are final and conclusive on the basis of 16 items, 4 items, and 16 items of the intellectual property law. Accordingly, the defendant marks 16 items of the intellectual property law as being final and conclusive on the basis of all answers. Accordingly, the defendant marks 16 items of the intellectual property law as being final and conclusive on the basis of all answers.

The fact that there is no dispute (applicable to recognition), A 2-1, 2, B 1-1 through 4, B 2-1 through 3, and B 3-1 through 3, respectively.

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

(1) The degree of setting up the 9th issue of the Economic Law is found not to be a common prohibited act under Article 11(1) of the Door-to-Door Sales Act, the prohibited act against the door-to-door seller, the multi-level seller under Article 23 of the same Act, the prohibited act against the multi-level seller under Article 32(1) of the same Act, and the prohibited act against the continuous transaction business operator and the soliciting business operator under Article 32(1) of the same Act. Since Article 32(1) of the same Act does not stipulate the "act of using information about consumers beyond the scope of permission or permission," it does not constitute a common prohibited act under Article 11(1) of the Act on the Consumer Protection in the Electronic Commerce, Etc., which is applicable mutatis mutandis under Article 48 of the same Act, and it is difficult to see that the above answers are not a common prohibited act under Article 11(1) of the same Act but a uniformly prohibited act under Article 32(2) of the same Act.

(2) The degree of setting up the issue of economic law No. 16 is to verify whether the contents of Article 8 of the Door-to-Door Sales, etc. Act are accurately known. The consumer of the case presented the above issue is entitled to withdraw the offer within 14 days from the date of receipt of the goods pursuant to Article 8(1)1 of the same Act, and ① "A may withdraw the offer within 14 days from the date of conclusion of the contract," which is the content of this answer, "A may withdraw the offer within 14 days from the date of conclusion of the contract," which includes that "A may withdraw the offer," which is the content of this answer, can not be withdrawn after the date of conclusion of the contract, so even after 14 days from the date of receipt of the goods, the offer corresponding to 14 days from the date of receipt of the goods can be withdrawn. Accordingly, this answer constitutes a correct explanation, and thus, it constitutes the answer to the above problem that is not correct as a description related to the cancellation of the contract.

(3) Even if a final and conclusive decision is lawful as to the above two issues of the domestic economic law subject, if there is no answer, it shall be given to the applicant who has selected the subject as an alternative subject by giving a mark to all answers, so that the examinee who has selected the subject may obtain more scores than the points allocated to the issue in fact without a correct answer, which shall be in violation of the principle of equality, and it shall be in violation of the principle of equality, and such problem shall take place in the same case where multiple regular answers are recognized. In order to prevent the examinee who has selected another subject from being damaged, the successful score shall be determined by considering the priority points of the applicants after giving a mark as originally announced, and with respect to the issue which has not been confirmed after a final answer or multiple regular answers, it shall be reasonable to give a score to the examinee who has selected a claim, other than the answer presented within the correct answer, and to make the examinee pass the examination in addition to the result of the examination, and to make the applicant pass the examination more reasonably.

(4) Since the plaintiffs did not choose all the subjects of economic law, the plaintiffs' scores are not changed depending on whether there is a correct answer, and the plaintiffs' scores are raised according to what method to mark the subjects included in the above two questions, but if there is a correct answer, the plaintiffs' scores are not higher than the above points determined by the defendant. However, if there is a correct answer, the scores of the examinees who have selected a claim of answer, which is not a correct answer, among the examinees who have selected the subjects of economic law, are reduced not only in the two issues, but also in the number of examinees who have selected a claim of answer, which is not a correct answer, but also in the subjects included in the absence of a correct answer or multiple answers, the points of the examination in question may decline. Thus, the defendant's scores are found to have been changed among the examinees, including the plaintiffs, based on the method of final answer or grading as above, so the defendant's ruling of passing the examination in this case is also abuse of discretionary power, and the plaintiffs who have obtained the above decision of passing the examination in this case.

B. Determination as to whether there is no answer to two issues of economic law subjects

(1) On the nine issues of economic law subject:

(A) Among five answers presented in the above problem, the remaining answers except for the answers are as follows: (a) there is no dispute between the parties as to whether they do not constitute a prohibited act common to door-to-door seller, door-to-door seller, multi-stage seller, continuous transaction business operator, transactions business operator for soliciting business, etc. under the Door-to-Door Sales, etc. Act; and (b) as to whether the answer constitutes a prohibited act common to them, the provisions of the Door-to-Door Sales, etc. Act and relevant Acts are as follows.

Door-to-Door Sales Act

Article 11 / [Prohibited Acts]

(1) No door-to-door seller, etc. shall commit any of the following acts:

9. Using (including the case of providing it to a third party; hereinafter the same shall apply) information on a consumer without obtaining the consent thereof from the consumer or beyond the extent of such consent;

* Door-to-door seller, etc. refers to a door-to-door seller or door-to-door seller under Article 6(3).

Article 23 / [Prohibited Acts]

(1) No multi-level marketing business entity shall commit any of the following offenses:

14. Using information on a consumer without obtaining the consent of the consumer himself/herself or beyond the scope of such consent.

Article 32 (Prohibited Acts, etc.)

(1) No continuous transaction business entity, etc. shall engage in any of the following conduct:

1. The act of exerting power on consumers to cause them to enter into a contract for recurring transactions, etc. or to interfere with the termination or rescission of a contract;

2. Act of making false or exaggerated information known to consumers, soliciting or trading with consumers by means of fraud, or interfering with the termination or cancellation of a contract;

3. Soliciting a consumer to purchase goods, etc. necessary for recurring transactions or transactions for soliciting business at a price significantly higher than trading prices;

4. Delaying to take measures or refusing to take such measures without justifiable grounds despite a consumer's termination or rescission of a contract for recurring transactions or transactions for soliciting business;

5. Changing his/her address, telephone number, etc. with intent to interfere with termination or cancellation of a contract;

6. Causing damage to consumers by neglecting the shortage of human resources or facilities necessary for the settlement of disputes or complaints for a considerable period;

7. Act of unilaterally supplying goods, etc. and claiming the price for such goods, etc. without any consumer subscription;

8. Compelling a consumer, by telephone, facsimile, or computer communications, to buy goods or services, although the consumer clearly expresses that he/she does not wish to buy such goods or services;

* The term "recurring business operator, etc." means a person who engages in the business of recurring transactions or transactions for soliciting business in accordance with Article 28(1).

Article 48 (Prevention of Misappropriation, Abuse, Fraudulent Use, etc. of Information on Consumers)

Article 11 of the Act on the Consumer Protection in the Electronic Commerce Transactions, Etc. shall apply mutatis mutandis to cases where extraordinary sales business entities collect and use information about consumers. In such cases, "electronic commerce transaction or mail order" shall be deemed "special sales".

* Special sales business entity refers to a person who engages in extraordinary sales business, such as door-to-door sales, telephone sales, multi-level marketing, continuous transaction, etc., as provided in Article 33(1) and (2).

The Act on Consumer Protection in Electronic Commerce, Etc.

Article 11 (Use, etc. of Information on Consumers)

(1) Where a business operator intends to collect or use (including provision to a third party; hereinafter the same shall apply) information on consumers for an electronic commerce transaction or mail order, he/she shall fairly collect or utilize it pursuant to the relevant provisions, such as the Act on Promotion of Information and Communications Network Utilization

Promotion of Information and Communications Network Utilization

Article 22 (Collection of Personal Information)

(1) Where providers of information and communications services collect personal information of users, they shall obtain the consent of the relevant users: Provided, That the same shall not apply to cases falling under any of the following subparagraphs:

1. Where it is necessary for implementing a contract to use information and communications services;

2. Where it is necessary to settle charges on the information and communications services rendered;

3. Where special provisions exist in this Act or other Acts.

(2) Where the provider of information and communications services intends to obtain the consent under paragraph (1), he/she shall notify users of the matters falling under each of the following subparagraphs in advance or specify in the terms and conditions

1. The name, department, position, telephone number and other contact information of the person in charge of personal information;

2. The purpose of collecting and using personal information;

3. The recipient, the purpose of provision, and details of information to be provided where personal information is provided to a third party;

4. The rights of the users and their legal representatives under Articles 30 (1) and (2) and 31 (2) and the method of exercising such rights;

5. Other matters prescribed by Presidential Decree as necessary for the protection of personal information.

Article 24 (Use, Provision, etc. of Personal Information)

(1) Every provider of information and communications services shall be prohibited from using the personal information or providing it to any third party beyond the scope of notice given under Article 22 (2) or the scope specified in the terms and conditions of use of information and communications services, except for the cases where the relevant user consents or where it falls under

1. Where it is necessary to settle charges on the information and communications services rendered;

2. Where it is necessary to compile statistics, conduct academic research, or conduct market research, and it is processed in a form that does not identify any specific individual;

3. Where special provisions exist in other Acts.

(2) Any person who is provided with personal information of users by the providers of information and communications services shall be prohibited from using such personal information or providing such information to any third party for any purpose other than the intended purpose of receiving such personal information, unless the relevant users consent thereto or

(B) Article 11(1)9 main text of the Door-to-Door Sales, etc. Act and Article 23(1)14 of the same Act provide for the following acts as prohibited acts against door-to-door sellers, door-to-door sellers, and multi-level sellers: (a) “act of using information about consumers without obtaining permission from the person in question or beyond the scope of permission”; (b) whereas Article 31(1) of the same Act providing for prohibited acts against continuous transaction business operators and transaction business operators does not explicitly stipulate such acts as prohibited acts.

However, Article 48 of the Act on the Consumer Protection in Electronic Commerce, Etc. provides that Article 11 of the Act on the Promotion of Information and Communications Network Utilization and Information Protection, Etc. shall apply mutatis mutandis to cases where extraordinary sales business operators, including persons engaged in recurring transactions and transactions for soliciting business, collect and use information about consumers. In full view of the provisions of Article 22(1), Article 24(1), and Article 24(2) of the Act on the Consumer Protection in Electronic Commerce, Etc., which are cited in Article 11(1) of the Act on the Consumer Protection in Electronic Commerce, Etc., the provider of information and communications services may, in principle, collect user's personal information after obtaining consent from the relevant user and provide it to a third party. Thus, the above problem of Article 32(1) of the Act on Door-to-Door Sales, etc., (5) does not clearly provide that "the act of using information about consumers without obtaining permission from the principal or beyond the permitted scope."

(5) Therefore, the answer can not be a fixed answer to the above problem, which requires the door-to-door seller, telephone-to-door seller, multi-level seller, multi-level seller, continuous transaction business operator, transactions business operator for soliciting business, etc. to select that it is not a prohibited act. Therefore, the plaintiffs' assertion that the answer is a fixed answer is without merit.

(2) On the issue of 16 items of economic law:

(A) The explanation related to the cancellation of order under the Door-to-Door Sales, etc. Act by the person who received the product after paying the down payment by the door-to-door seller to purchase the one-door Sales from the door-to-door seller, and then paying the down payment, and there is no dispute between the parties as to whether the answer is a correct explanation, and as to whether the answer is a correct explanation, the provisions of the Health Unit and the Door-to-Door Sales, etc. Act are as follows.

Article 8 (Cancellation, etc. of Orders)

(1) A consumer who has concluded a contract for the purchase of goods, etc. by door-to-door sales or door-to-door sales (hereinafter referred to as "door-to-door sales, etc.") may withdraw an application for the relevant contract, etc. within any of the following periods (where the parties to a transaction have agreed on a longer period than any of

1. fourteen days from the date on which a written contract under Article 7 (2) is delivered: Provided, That where the supply of goods, etc. is delayed than the time when the written contract is delivered, fourteen days from the date on which the supply of goods, etc. is supplied or the supply of goods, etc. commences;

Article 7 (Provision of Information prior to Conclusion of Contract and Obligation to Deliver Contract following Contract Conclusion)

(2) A door-to-door seller, etc. shall deliver a contract stating the matters specified in paragraph (1) to a consumer when concluding a contract for the sale of goods, etc.

(B) In the above case, Gap may cancel its subscription within 14 days from the date of receipt of the contract in principle pursuant to the main sentence of Article 8 (1) 1 of the Door-to-Door Sales, etc. Act, but even if Gap received the contract from the door-to-door seller at the time of conclusion of the contract pursuant to Article 7 (2) of the same Act, Gap may cancel its subscription within 14 days from the date of receipt of the above-to-door Sales, etc. under the proviso of Article 8 (1) 1 of the same Act, since the above-to-door Sales, etc. was supplied to the door-to-door seller at the time of conclusion of the contract, Gap may cancel its subscription for the above period.

Therefore, "A may withdraw the offer of a contract within 14 days from the date on which the contract was entered into" presented by the answer port is also correct.

On the other hand, the plaintiffs are able to withdraw subscription when 14 days have elapsed from the date of conclusion of the contract, and the above consumer can withdraw subscription even after 14 days have passed from the date of conclusion of the contract, as seen earlier, since the above consumer received the product from the date of conclusion of the contract, and thus, even after 14 days have passed from the date of conclusion of the contract, it is reasonable to see that the above answer constitutes a justifiable explanation. Thus, it is reasonable if sees that "A may withdraw subscription only within 14 days from the date of conclusion of the contract," and that "A may only withdraw subscription within 14 days from the date of conclusion of the contract." However, the above issue is merely that "A may only withdraw subscription within 14 days from the date of conclusion of the contract."

Therefore, the plaintiff's assertion that the answer is a correct answer to the cancellation of order is without merit since the answer can not be a correct answer to the above issue that requires the selection of a answer that is not correct.

C. Determination on the marking method of the subject without a correct answer or having multiple answers;

(1) In the instant examination to verify whether a person who intends to become a military advocate or a person who intends to become a military advocate has necessary knowledge and ability, the act of setting the method of evaluation and grading standards is a discretionary act that the defendant may freely determine within the scope prescribed by law in consideration of the purpose, content, etc. of the judicial examination (see Supreme Court Decision 97Nu1371 delivered on July 10, 1998, etc.). The act of setting the grading standards as mentioned above shall include not only the act of selecting a correct answer to the given issue, but also the marking method for the matters determined by a correct answer or multiple answers. Thus, the method of grading the issue without such a correct answer or multiple answers cannot be deemed unlawful unless it is deemed that it is remarkably unreasonable because it deviates from and abused discretionary power.

(2) However, in the case of the examination of this case where only one answer suitable for the purport of the text among five answers is selected as a correct answer, if one answer becomes final and conclusive as a number of answers, then one of them shall be deemed to constitute the choice of a correct answer, and thus, it shall be the most reasonable grading method in all of them.

(3) In addition, if it is given a mark to meet all answers to a matter that is confirmed as having no answer in the economic law or international law, which is the selective subject, the points assigned to the examinee who does not have any knowledge about the matter, thereby obtaining the corresponding additional points, and thereby, it may cause the person who has selected another subject to it to suffer a relative disadvantage.

However, in such cases, it is deemed reasonable in light of the method of the examination of this case where it is allowed to select any one of the most suitable questions in the answer answer, and it is also difficult to regard that the method of calculating gains [for example, the subject of economic law is changed from 2:50 points/25 points/25 points) to 2.1739 points/50 points/50 points/23, less than 4 decimal point] to 2.50 points/239 points/number of less than 50 points/number of less than 4 points] to bring disadvantages to the examinees with accurate knowledge about the subject in which the problem is addressed, and in fact, it is difficult to regard the method of giving marks from the beginning to treat only 23 points at the same rate as the first point, regardless of the fact that the examination subjects actually conducted an examination for 25 points.

In addition, it is difficult to accept the method of giving the plaintiffs' assertion, i.e., the mark method, not the final final confirmed answer, but the defendant has determined the order of examinees by referring to the answer that was announced as the correct answer, and then considering the passing score according to the number of examinees to be selected based on the order of priority. However, considering the method of giving the additional score to the relevant examinee with respect to the issue that has no answer or multiple answers, and then the examinee who has already been determined the successful score which has already been determined by the additional method, it is difficult to accept in that there is no reasonable ground to assess the passing score by putting it on the basis of the correct answer, which is just a temporary answer, which is a temporary answer.

Ultimately, even if the problem which became final and conclusive as no answer in some selections and items becomes final and conclusive, it is given to the examinee who has selected another subject as a relative disadvantage, and even if the examinee has returned to a relative disadvantage, it is not possible to find a more reasonable grading method that does not cause any benefit or disadvantage to all examinees, and it is not deemed that the defendant's marking method that treats all answers as a correct answer is obviously unreasonable in light of the fact that the examinee who has an accurate knowledge about the matter dealt with in question should naturally obtain the score from the examinee who has an accurate knowledge about the matter in question, and it is determined that there is no answer.

(4) Therefore, the plaintiffs' assertion that there is no correct answer or that the defendant's grading method in the case of multiple regular answers deviates from or abused discretion is also without merit.

(d) Conclusion

It is determined that there is no answer to the issue No. 9 of the subject of economic law and No. 16, and that there is no answer to such issue, it is appropriate to all answers, and the defendant's disposition of this case is legitimate when it gives marks that any one of the answers in the correct answer is appropriate with respect to the issue determined by multiple answers.

4. Conclusion

Therefore, the plaintiffs' claim of this case seeking revocation on the premise that the disposition of this case is unlawful is all dismissed, and it is so decided as per Disposition.

Judges Kim Chang-suk (Presiding Judge)