(영문) 서울행정법원 2019.5.10. 선고 2016구합75258 판결

1. On May 15, 2015, the Defendant’s revocation of each price adjustment order with respect to each of the curriculum books listed in the separate sheet No. 1 as to the Plaintiff.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The Plaintiff published a publication company publishing the authorized curriculum books used at elementary schools, etc., the price of the textbook of this case was KRW 6,600, and the price of the map of this case was KRW 45,000, respectively, when the Plaintiff published the textbook of this case in 2015 from 5 to 6th elementary schools (hereinafter referred to as “the textbook of this case”), and the textbook of this case in 5 to 6th elementary schools (hereinafter referred to as “the textbook of this case”).

B. The Defendant ordered the Plaintiff to adjust the price of the instant textbook as KRW 4,640, and the price of the instant guide book as KRW 16,650, respectively, on the grounds as indicated below, based on Article 33(2)1 and 3 of the Regulations on Textbooks (hereinafter “Rules on Textbooks”) that allows the Plaintiff to order a price adjustment via a deliberative council of curriculum books (hereinafter “Deliberative Council”) where the price of the instant guide book is likely to be determined unfairly (hereinafter “instant disposition”).

A person shall be appointed.

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. Judgment on the Defendant’s defense prior to the merits

A. The defendant's assertion

The instant disposition was made on May 5, 2015 and reached the Plaintiff around that time. As such, the instant lawsuit filed on September 12, 2016 and the instant lawsuit filed on September 12, 2016, which had passed one year thereafter, is unlawful, solely with the filing period stipulated in Article 20(2) of the Administrative Litigation Act.

B. Determination

Comprehensively taking account of the respective descriptions and arguments written evidence Nos. 2, 3, and 4, the Plaintiff filed an objection against the instant disposition on June 12, 2015, but the Defendant rendered a decision not to accept the said objection on August 11, 2015. Accordingly, the Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission on November 6, 2015, but the Central Administrative Appeals Commission rendered a ruling dismissing the Plaintiff’s claim on June 14, 2016, and the Plaintiff was deemed to have received the original copy of the said written ruling on June 28, 2016.

According to the proviso of Article 20(2) and the proviso of Article 20(1) of the Administrative Litigation Act, when an administrative appeal is filed, a revocation lawsuit may be filed within one year from the date of the adjudication. As such, since the Plaintiff was served with the original written adjudication on June 28, 2016, the Plaintiff filed the instant lawsuit on September 12, 2016, it is apparent that it was within one year from June 28, 2016 (the period for filing a lawsuit was complied with by 90 days under Article 20(1) of the Administrative Litigation

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) As to each of the instant curriculum books, there is no concern that the “price determined as the requirement for an order for price adjustment” under Article 33(2) of the Textbooks Regulations is to be determined unfairly, and thus, the grounds for the instant disposition are not recognized.

2) The method of price calculation according to the standard number of copies prescribed in the notice of detailed items for the order for price adjustment (No. 2015-49, hereinafter referred to as “the notice of this case”) by the Defendant based on the order price calculation in the instant disposition is unreasonable.

3) The instant disposition is unlawful by deviating from and abusing discretionary power, such as setting excessively low order prices.

B. Relevant statutes

Attached Table 2 shall be as stated in the relevant statutes.

C. Determination

1) The requirements for the order to adjust the price and whether the "price is likely to be unfairly determined" is recognized

A) Article 29(2) of the Elementary and Secondary Education Act provides that “The scope, author, authorization, recognition, publication, supply, selection, and price-assessment, etc. of curriculum books” shall be prescribed by Presidential Decree. Accordingly, Article 33 of the Curriculum Rules provides that “the prices of authorized books and approved books shall be determined by the publishing company which entered into an agreement with the author” under paragraph (1) of the same Article. Notwithstanding Article 33(2) of the same Act, where the prices of authorized books and approved books are likely to be determined unfairly due to any of the following grounds, or where the publishing company fails to reflect the costs invested after the price was determined, the Minister of Education may order the price adjustment via the Deliberation Committee if the price of authorized books and approved books are collected in full, but the ratio of manufacturers who did not actually occur in the process of developing and manufacturing curriculum books is at least 15/100, 2. Price determination items or cost of curriculum books (Article 33(1) of the same Act).”

In order to issue an order for price adjustment on the grounds that the content and amendment history of the provision of this case, the legislative intent, and the following circumstances are likely to be unfairly determined on the grounds that the price of the authorized book and approved book is likely to be determined on the grounds of each subparagraph of the provision of this case, it shall be separately recognized that the pertinent curriculum book falls under the grounds of each subparagraph of this case, and that the price might be determined unfairly due to such reasons. In this case, the grounds of each subparagraph of this case regarding the curriculum subject to an order for price adjustment are recognized as to the curriculum subject subject matter subject to an order for price adjustment, and the fact that the price of the curriculum is likely to be determined unfairly cannot be seen as the presumed relation. Accordingly, the defendant must prove not only that the grounds of each subparagraph of this case regarding each curriculum subject matter of this case are recognized, but also that the price might be determined unfairly (see Supreme Court Decision 2015Du6020, Jan. 31, 2019).

(1) Whether the price is likely to be determined unfairly or not shall be determined by comprehensively taking into account the excessive benefit of the publishing company of approved books and the increase in the consumer’s economic burden therefrom. It is difficult to readily conclude that the publishing company gains excessive benefit at all times or increases the consumer’s economic burden on the grounds that the grounds prescribed by the subparagraphs of the instant provisions exist.

② It is difficult to view that the correlation between the reasons under each subparagraph of the instant provision and the price actually determined or desired by the publishing company is clear. Despite the existence of the reasons under each subparagraph of the instant provision, the price determined or desired by the publishing company may not be objectively deemed unfair and unfair. In particular, Article 3 of the instant provision provides that “Where the actual number of copies issued is more than 1,000 copies than the expected number of copies issued,” and when considering the desired price submitted by the Plaintiff, it is not consistent with the estimated price per one book calculated based on the expected number of copies issued, and thus, it is not clear that the expected number of copies issued and the desired price are not relevant.

B) Meanwhile, in full view of the following: (a) publishing companies issuing the textbook and the essence of which is to pursue profit-making as the subject of freedom of business activities; (b) under the inspection and approval system, various types of textbooks per subject exist and schools at various levels adopt and order one textbook after comparing and reviewing the contents and level of textbooks and the appropriateness of prices; (c) it appears that the minimum market economy principle, which is the principle of demand and supply, will operate in the textbook market; and (d) the Ministry of Education introduced the textbook price autonomy system and promoted the expansion of the percentage of the approved book among the total textbooks by allowing publishing companies to input time and effort into the textbook production; and (e) it is reasonable to reasonably recognize that the degree of involvement by the State in price determination by the curriculum books, even if the curriculum books have public characteristics, is likely to have an excessive price increase in the curriculum books due to the increase of prices, and thus, it is reasonable to reasonably recognize that the price increase in the curriculum books and the average price increase in the curriculum environment, based on the following factors.

C) As to the instant case, the Defendant asserts that the price of each of the instant curriculum might be determined unfairly, and the Defendant calculated the desired price by appropriating the film output cost and examination fee that is not included in the production cost, etc. ② calculated the desired price by applying less anticipated number than the actual number of publication copies and the average number of publication copies; ③ the price increase rate for textbooks and guide books according to the revised curriculum in 2007 exceeds the average price increase rate for the last three years and the total income increase rate for each person.

However, under Articles 13 and 16 of the Textbooks Regulations, the following circumstances acknowledged by the aforementioned evidence, i.e., the applicant for the inspection and authorization, are unreasonable to compare the prices of textbooks and guide books with the prices of textbooks and guide books in consideration of the number of pages of the applied book, degree of difficulty in the subject of examination, and expenses for authorization. Since the above fees are expenses inevitably needed for the publication of the textbook and guide books, the mere fact that the publishing company reflected them in the calculation of the desired prices of curriculum books cannot be readily determined that the price might be unfairly determined. Considering that the above circumstances are difficult to accurately estimate the number of copies of the textbook and guide books of the other publishing company which will be finally passed at the time of calculating the desired prices, considering that the number of copies of the textbook and guide books were not known or quality of the textbooks and guide books, it is unreasonable to compare them with the prices of textbooks and guide books according to the previous curriculum even if the revision of the curriculum was made in the year of 2015, as seen earlier, there is no concern for the price increase rate of textbooks of textbooks.

2) Whether the method of price calculation prescribed in the instant public notice is unlawful

A) The public notice of this case prescribes that the "standard number of copies" should be calculated by dividing the total amount of manufacturing costs and all costs by the "standard number of copies" and multiplying the average number of copies for the last three years by the consumer price inflation. In the event that the actual number of copies is not less than the average number of copies, the standard number which reflects the actual number of copies (the calculation by deducting 18.5% of the number of copies actually issued and the number which applies the annual average number of students to the actual number of copies issued) and the standard number which applying the average number of copies (the calculation by deducting the average number of copies applied by the average number of copies by 3.5% and the number which applies the annual average number of students to the relevant number by the number of copies) which apply the average number of copies (the calculation by deducting the number applied by the average number of copies by the average number of 3.5% and the number applied by the average number of copies).

B) However, in determining the standard number of copies with respect to publishing companies whose actual number of copies is less than the average number of copies, the Defendant grants 3.5% incentives based on average number of copies to the former, while the latter gives 18.5% incentives to the actual number of copies reflected in the actual number of copies issued without reasonable grounds, it constitutes arbitrary discrimination, and the calculation of adjustment price based on such standard number of copies is unlawful (see Supreme Court Decision 2016Du65725, Jan. 31, 2019).

D. Sub-committee

Therefore, the instant disposition against each of the instant curriculum books is not recognized as the grounds for the instant disposition, and it is unlawful to calculate the ordered price of the instant disposition based on the instant notice. As such, the instant disposition ought to be revoked in an unlawful manner without examining any further.

4. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.