[1] Whether the act of invalidating the test performance result of an examinee who conducted a fraudulent act by the Minister of Education and Human Resources Development constitutes an administrative disposition subject to appeal (affirmative)

[2] The legal nature of a disposition of notifying invalidation of the results of an examination by the Minister of Education and Human Resources Development for an examination applicant who committed an unlawful act (=indecent act)

[3] The case holding that it cannot be deemed that there was no administrative disposition even if only a name tag "Ministry of Education and Human Resources Development" is written and affixed to a notice of invalidation of a waterway performance

[1] Under Article 34 (4) of the former Higher Education Act (amended by Act No. 7699 of Nov. 22, 2005), the Minister of Education and Human Resources Development has made a declaration of public authority and invalidation as to whether the examination result constitutes an unlawful act in order to invalidate the examination result. Furthermore, from the perspective of university which uses the examination result as a kind of ability certification test conducted to measure the ability of the examination subject to study at university and to utilize it as a part of the examination data for university entrance screening, the examination result of the examination results and the calculation of the results of the examination can only be bound by the examination result of the examination, and it cannot be denied by an independent decision, and the examination result of the examination becomes invalid directly affected by the success of the selection process or the validity of the examination for university entrance, and the examination result of the examination cannot be seen as a final invalidation of the examination result of an administrative authority's completion of the examination (the examination result of the examination cannot be seen as a final invalidation of the examination result of an administrative authority.

[2] In a case where the Minister of Education and Human Resources Development recognizes a fraudulent act in a waterway test, he is only bound by Article 34(4) of the former Higher Education Act (amended by Act No. 7699 of Nov. 22, 2005), and has no discretion to take any other measure by comparing public interests and private interests. A waterway test is an ability certification test to measure the ability to receive education at a university, and its grade is used as one of the admission screening data at a university. Thus, if a fraudulent act is involved in such a test process, it infringes the educational purpose of the university that intends to select and train a human resources, and even if such fraudulent act has been discovered after passing the test, it has been rejected for a long time, or has been relieved for the reason that it has shown an excellent grade after entering a university, it is highly necessary to prevent the serious distortion of competition, as well as to prevent the occurrence of a fraudulent act. Thus, even if a performance notification can be invalidated due to such a performance notification, it can not be revoked.

[3] The case holding that even if only a name tag of "Ministry of Education and Human Resources Development" is written and a seal is not affixed to a notice of invalidation of water capacity, such notification of invalidation of water capacity has been formed lawfully inside and outside, the contents of notification of invalidation of water capacity are clear, and it can be clearly known who is the subject of administrative disposition by clearly stating that it can file an administrative appeal against the Minister of Education and Human Resources Development, etc.

[1] Article 34 (4) of the former Higher Education Act (amended by Act No. 7699 of Nov. 22, 2005); Article 2 of the Administrative Litigation Act / [2] Article 34 (4) of the former Higher Education Act (amended by Act No. 7699 of Nov. 22, 2005) / [3] Article 2 of the Administrative Litigation Act

Plaintiff (Attorney Lee Won-won, Counsel for plaintiff-appellant)

Minister of Education and Human Resources Development (Law Firm Korea, Attorneys Kim Jong-soo, Counsel for defendant-appellant)

October 25, 2006

1. The plaintiff's primary and conjunctive claims are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On February 16, 2006, the defendant's notification of invalidation to the plaintiff on February 16, 2003 is confirmed to be invalid.

Preliminaryly, the Defendant’s 2003 notice of invalidity on February 16, 2006 against the Plaintiff is revoked. The Defendant confirmed that there is no disposition of invalidation notification on February 16, 2003 against the Plaintiff on February 16, 2006.

1. Basic facts

A. On October 2005, the defendant notified the plaintiff that he raised an objection not later than October 28, 2005, on the ground that the plaintiff had an objection to the invalidation of the results of fraudulent acts because the year 2003 was consistent with the answer of the illegal act from the same high school as the result of comparison with the response of the 2003-year 2003-year 2003-year 2003-year 2003.

In addition, under reference matters, “* even if the suspension of indictment was imposed by the prosecution, it is distinguished from the disposition of non-guilty suspicion as a result of conviction, and the objection simply stating the prior action is not accepted.”

B. On October 26, 2005 and November 16, 2005, the Plaintiff did not engage in any unlawful act such as the contents that the Defendant issued a notice of invalidation, and did not know of the illegal person from the same school, and did not receive a notice of the disposition of suspension of indictment from the prosecution. Although the prosecution made a disposition of suspension of indictment, the Defendant submitted a supplementary statement on the objection and objection that it cannot be found guilty even in the case of the prosecutor’s disposition of suspension of indictment, but on February 16, 2006, on the ground that the Plaintiff possessed a mobile phone during the test period during the water performance test period and entered the answer in the answer site after transmitting the answer form from another applicant, the Plaintiff notified the Plaintiff of the results of the performance test during the 203-year test period in accordance with Article 34(4) of the former Higher Education Act (amended by Act No. 7699, Nov. 22, 2005; hereinafter the same shall apply).

[Reasons for Recognition] 1, 2, 1, 3-1, 2

2. Whether the instant lawsuit is lawful

The defendant asserts that the lawsuit in this case shall be dismissed on the ground that the lawsuit in this case shall be dismissed on the ground that the notification of invalidation of the examination results is merely a notification of fact that informs about invalidation of the examination results, and it is not an administrative disposition, because it is not possible to regard it as an administrative disposition, in case where it is confirmed that there was an unlawful act while taking the examination.

However, under Article 34 (4) of the former Higher Education Act, the defendant's official authority and declaration of invalidation should be made as to whether the examinee's performance test constitutes a fraudulent act in order to invalidate the results of the examination. Furthermore, from a university's perspective that uses the results of the examination as admission screening data in order to measure the ability of the examinee to learn at a university or college and use the results of the examination as a kind of performance test conducted to measure the ability of the examinee to learn at a university or college, the results of the examination can be bound, and the results of the examination can be reflected in the entrance screening as they are, and it cannot be denied by its independent judgment, and thus the defendant's action of invalidation of the examination results can only directly affect the success of the selection process or the validity of university admission. Accordingly, the defendant's action of invalidation of the examination results cannot be viewed as a final exercise of public authority. Thus, the defendant's action of invalidation of the examination results of the examination conducted by the plaintiff constitutes an administrative action that becomes invalid as a result of the examination (this case's administrative action).

3. Whether a disposition to notify invalidation is lawful.

A. The plaintiff's assertion

(1) The Plaintiff did not commit an unlawful act, and only prepared a written self-statement without compelling the prosecutor to accept a criminal fact repeatedly against the Plaintiff, and any person is presumed innocent until the court rendered a judgment of conviction. The Defendant determined that the Plaintiff was subject to a disposition of suspension of indictment until the court rendered a judgment of conviction. The Defendant rendered a judgment of conviction as to the invalidation notification (hereinafter “instant disposition”) on the premise of the disposition of notification of invalidation (hereinafter “instant disposition”), and thus, the instant disposition is unlawful as it is not based on the law, and its defect is significant and apparent and invalid.

(2) The plaintiff passed the occasional screening of the Joseon University on the water ability and high school. The performance test result was not only reflected but also passed during the fourth-year period, and it shows that the plaintiff was assigned to a school group through a strict examination and received a scholarship, and received a scholarship, and went through a strict examination. The plaintiff's disposition that the plaintiff received is merely a delay of entering the school due to the notification of invalidation. If the plaintiff gives up his studies and is reduced in the school group, it is more likely that it would be difficult for the plaintiff to resume his academic activities in the future than the public interest to eradicate the illegal acts, such as what is expected to be difficult to overcome the plaintiff's fatal shooting. In light of the above, the defendant's disposition of this case should be revoked because the defendant's disposition of this case was deviating from and abused discretion, and thus it is unlawful.

(3) When taking an administrative disposition, the Ministry of Education and Human Resources Development shall specify who is in the position of the Ministry of Education and Human Resources Development has taken an administrative disposition. However, the Defendant’s notification of invalidation of water performance to the Plaintiff is written only with the name of “Ministry of Education and Human Resources Development” and the seal was not affixed, so such notification of invalidation of water performance should be deemed not to have been in the form of an administrative disposition, and thus,

B. Relevant statutes

Article 34 (Selection Method of Students) (4) of the former Higher Education Act

With respect to a person who commits an illegal act in the examination under paragraph (3), the relevant examination shall be null and void.

(c) Markets:

(1) First, there is no evidence to prove that the Defendant rendered the instant disposition by determining that the Plaintiff was guilty of having been sentenced to the suspension of indictment with respect to the underwater misconduct.

In addition, since punishment and administrative disposition on the same act differ from the subject, purpose, effect, etc., regardless of whether there is a final judgment of conviction against the act is subject to an administrative disposition, an administrative agency may take an administrative disposition in accordance with the provisions of the Act in cases where the act is subject to an administrative disposition separately after separately judging whether the act in question becomes subject to an administrative disposition. According to the evidence Nos. 3 and 4, it can be recognized that the plaintiff sent 10 questions about the repair field to a cellular phone during the examination for the repair area of the second time and moved to the answer site. According to Article 34(4) of the former Higher Education Act, the examination should be invalidated for the person who committed the act in question. Thus, it is legitimate for the defendant to take the disposition in this case by applying Article 34(4) of the former Higher Education Act to the plaintiff's act in question, and the plaintiff's assertion that the disposition in this case

(2) In a case where a fraudulent act is recognized in a waterway test, the defendant is bound by Article 34(4) of the former Higher Education Act, and has no discretion to take any other measure compared to public interest and private interest. Since the performance test is a ability certification test to measure the ability to learn at a university, its grade is used as one of the entrance screening data of the university, if such test is involved, it infringes the educational purpose of the university that intends to select and train human resources, and even if such fraudulent act has been discovered after passing the test, it would seriously distort the competition principle, and thus, it is highly necessary to prevent such fraudulent act from occurring, in light of the public interest. Accordingly, the plaintiff's assertion that the disposition in this case is unlawful as it exceeds the discretion and it is not unlawful for the plaintiff's assertion that the disposition in this case is unlawful.

(3) According to the statement in Gap evidence No. 1, the Ministry of Education and Human Resources Development (Ministry of Education and Human Resources Development) was notified of invalidity of 2003 in the name of the Ministry of Education and Human Resources Development (Ministry of Education and Human Resources Development) and did not affix a name tag in the notification of invalidation, but if the subject and contents of administrative disposition are objectively known from an objective point of view, it shall be deemed that the document of evidence No. 1 is equipped with the form of administrative disposition. According to the statement of evidence No. 1 and the testimony of the witness of the non-party, it is clearly stated that the grounds, grounds, legal grounds, and the defendant can file an administrative appeal and administrative litigation against the Minister of Education. The non-party in charge of the university policy department and university department of the university and the public official in charge of the non-party, who proposed the notification of invalidity of the above ability, was approved by the director, the director of the university policy department, the Assistant Minister, and the Minister of Education and Human Resources Development (Ministry of Education and Human Resources). The non-party’s assertion that the above notification of invalidation of administrative disposition can be clearly accepted.

4. Conclusion

Thus, the defendant's disposition of this case is legitimate, and the plaintiff's main and conjunctive claims seeking its revocation are not accepted as it is without merit.

Judges Park Jong-chul (Presiding Judge)