[1] The meaning of an administrative disposition subject to appeal litigation

[2] The case holding that it constitutes an administrative disposition that is subject to an appeal litigation, where the Superintendent of an Office of Education issued a disposition order after conducting an audit of the school juristic person and reported the result of the corrective measures along with it in writing accompanied by a documentary evidence, ordering the burden of obligation or giving other legal effects

[1] Articles 1 [General Administrative Disposition], 2, and 19 of the Administrative Litigation Act / [2] Articles 1 [General Administrative Disposition], 2, and 19 of the Administrative Litigation Act; Article 48 of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005)

[1] Supreme Court Decision 2005Du7853 Decided October 26, 2007, Supreme Court Decision 2008Du3500 Decided April 24, 2008

Plaintiff (Law Firm Future, Attorneys Park Jong-soo et al., Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Superintendent of Education (Law Firm Sam Young, Attorneys Kim Jong-ok et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2005Nu1918 delivered on November 3, 2006

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

The term "administrative disposition", which is the object of an appeal litigation, means an act of an administrative agency under public law, which directly changes in the legal status of the other party or other persons concerned, such as an act of ordering the establishment of rights or the burden of obligations under Acts and subordinate statutes, or giving rise to other legal effects on a specific matter, and an act, etc., which does not directly cause legal changes in the legal status of the other party or other persons concerned, such as acts within the administrative authority, intermediation, solicitation, de facto notification, etc., cannot be subject to appeal litigation (see, e.g., Supreme Court Decision 2008Du35

Article 4(1) of the former Private School Act (amended by Act No. 7802 of Dec. 29, 2005; hereinafter “Act”) provides that “School foundations that have established and operate private schools shall be subject to the direction and supervision of the Special Metropolitan City, Metropolitan City, and Do superintendent of the Office of Education (hereinafter “competent authorities”) having jurisdiction over their domicile.” Meanwhile, in Articles 20-2, 48, and 54(3) of the Act for the proper guidance and supervision of school foundations, the competent authorities may cancel the approval of the appointment of an officer if an officer of a school juristic person violates the provisions of the Act or the Enforcement Decree of the Act. If necessary for supervision, the competent authorities may order the school juristic person to submit a report, inspect books, documents, etc., as well as order the school juristic person to take necessary measures. If a private school teacher is dismissed or disciplinary cause, the person who has the authority to appoint and dismiss the school juristic person may request dismissal or disciplinary action against the teacher. Furthermore, Article 73 subparag. 4 of the Act shall be punished by imprisonment with prison labor for not more than two years or less than two years.

According to the facts and records acknowledged by the court below, the defendant conducted a comprehensive and special audit of the plaintiff and the private schools operated by the plaintiff, and ordered the plaintiff on August 12, 2003 to take corrective measures until October 14, 2003 and to report the result in the written document attached thereto. The disposition order of this case is an administrative and financial measure to compensate the amount equivalent to the State property paid to the plaintiff to the school accounting again (which is related to state property) or to compensate the plaintiff for the amount equivalent to the State property paid to the school accounting (which is related to state property compensation) or to the principal of the school (which is related to the admission fee and school meal service fee) or to the relation to the members of the school (cooperative related to the union), and a social position measure to demand disciplinary action against the officers and staff related thereto. Considering the contents of the disposition order of this case, the administrative and financial measure part of the disposition order of this case is not a legal ground for compelling the plaintiff to take such corrective measures or imposing disciplinary action, but it is not a legal ground for compelling the disciplinary action of Article 5(3).

However, according to the above facts, the defendant ordered the plaintiff to report the result of the corrective measure as a document accompanied by the letter of evidence, and thus, the result of the corrective measure of the order of this case is actually included in the contents of the order to report and attach documents based on Article 48 of the Act, so long as corrective measure pursuant to the order to report and attach documents is not prior to the corrective measure pursuant to the order to report and attach documents, it is difficult for the defendant to implement the above order to report and attach documents. In addition, if the above order to report and attach documents is not complied with, the approval of the appointment of an executive officer may be cancelled on the ground that the chief director of the school juristic person is punished for criminal punishment or violates the provisions of the law. In light of these circumstances, in order to implement the above order to report and attach documents, it is practically compelling the plaintiff to first implement all measures in accordance with the above order to report and attach documents. Therefore, it is difficult to view that the order of this case is merely an administrative guidance, which is a non-power factual act with only recommended effect, and it is reasonable to interpret it

Nevertheless, the court below decided that the defendant's disposition order of this case against the plaintiff is not an administrative disposition subject to appeal litigation, and dismissed the lawsuit of this case on the grounds as stated in its reasoning. In so doing, the court below erred by misapprehending the legal principles as to an administrative disposition subject to appeal litigation, thereby affecting the conclusion of the judgment. The ground of appeal pointing this out is with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)