[1] The meaning of "a violation of the provisions concerning election" and "a violation of the provisions concerning election" under Article 224 of the Public Official Election Act, which are the grounds for invalidation of election as prescribed by Article 224 of the Public Official Election Act, which applies mutatis mutandis to the election of superintendent of education pursuant to

[2] Meaning of “the career of working as a teacher at a school under Article 2 of the Higher Education Act” under Article 24(2)1 of the Local Education Autonomy Act, and whether in a case where a person is appointed as a teacher under Article 14(2) of the Higher Education Act and engages in his/her duties, he/she may be deemed as a career of working as a teacher (affirmative)

[1] Article 224 of the Public Official Election Act shall apply mutatis mutandis to a lawsuit seeking invalidation of an election for Superintendent of the Office of Education pursuant to Article 49(1) of the Local Education Autonomy Act, and Article 224 of the Public Official Election Act shall apply mutatis mutandis to a lawsuit seeking invalidation of an election for Superintendent of the Office of Education, and even if there is a fact that there is a violation of the provisions concerning an election, which is the grounds for invalidation of an election, shall be determined only when the Election Commission, which is the subject of election management, violates the provisions concerning the management and execution of election affairs, and when it is recognized that the freedom and fairness of an election, which is the basic ideology of the election, is significantly impeded because the elector is unable to vote by free judgment due to an illegal act committed by a third party, such as a candidate, if there is no violation of the provisions concerning an election. In addition, the term “when it is recognized that the result of an election had

[2] In light of the legislative intent of Article 24(2)1 of the Local Education Autonomy Act (hereinafter “Education Autonomy Act”), Articles 14(2), 15(2), and 16 of the Higher Education Act, and Article 24(2) of the Education Autonomy Act that requires educational experience or educational administrative experience to a candidate for an office of education, the term “career as a teacher at a school under Article 2 of the Higher Education Act” under Article 24(2)1 of the Education Autonomy Act shall be deemed to be the career as a professor, associate professor, assistant professor, and instructor under Article 14(2) of the Higher Education Act. Accordingly, if a person is appointed as a teacher under Article 14(2) of the Higher Education Act and performs his/her duties, he/she may be deemed to be the career as a teacher.

[1] Article 49(1) of the Local Education Autonomy Act, Article 224 of the Public Official Election Act / [2] Article 24(2)1 of the Local Education Autonomy Act, Articles 2, 14(2), 15(2), and 16 of the Higher Education Act

[1] Supreme Court Decision 2004No54 decided Jun. 9, 2005 (Gong2005Ha, 1160)

[Judgment of the court below]

The Chairperson of the Gyeonggi-do Election Commission (Attorney Hwang Yong-hwan, Counsel for plaintiff-appellant)

The plaintiff's claim is dismissed. The costs of lawsuit are assessed against the plaintiff.

The election of the superintendent of an office of education of Gyeonggi-do shall be invalidated on June 13, 2018, among the seventh nationwide local elections implemented on June 13, 2018

1. Basic facts

The following facts are not disputed between the parties:

A. On June 13, 2018, the 7th election of the Gyeonggi-do superintendent of education (hereinafter “instant election”) implemented on June 13, 2018, Nonparty 1 candidate was determined as the elected person by Nonparty 4, the 1,026,135 candidate for Nonparty 2, the 1,374,952 candidate for Nonparty 3, the 534,851 candidate for the Plaintiff, and the 2,385,410 candidate for Nonparty 4, the 2,385,410 candidate for Nonparty 4, the 1st executive candidate for Nonparty 4, as the elected person.

B. On June 25, 2018, the Plaintiff filed a petition against the National Election Commission for an election against the Defendant. On August 20, 2018, the National Election Commission rendered a decision to dismiss the Plaintiff’s petition for an election.

C. On August 24, 2018, the Plaintiff served a written decision on dismissal of a petition filed by the National Election Commission, and filed the instant lawsuit on September 3, 2018.

2. The plaintiff's assertion

The plaintiff asserts that the election of this case is null and void for the following reasons.

A. The instant election is in violation of the provisions relating to the election as follows.

1) Nonparty 3 submitted a forged certificate of employment with a document certifying educational career while filing a preliminary candidate registration or a candidate registration. Nonparty 3 was an associate professor at ○○ University (from March 31, 2015 to April 2, 2018) and held office as a full-time employee △△△△△△△△△△△△△, a full-time employee (from March 31, 2015 to September 15, 2017) cannot be recognized as an educational career prescribed in Article 24(2) of the Local Education Autonomy Act (hereinafter “Autonomous Education Act”). Thus, Nonparty 3 did not meet the qualification of the superintendent of education. In addition, Nonparty 3 carried out an election campaign publicly announcing such false career.

2) Nevertheless, the Defendant violated Articles 49(8), 60-2(3), and 272-2 of the Public Official Election Act, which are applied mutatis mutandis pursuant to Article 49(1) of the Education Autonomy Act, and violated Article 52(1)1 of the Public Official Election Act by failing to examine whether Nonparty 3’s certificate of employment submitted by Nonparty 3 was forged and whether Nonparty 3 served as an associate professor at ○○○ University. The Defendant violated Article 52(1)1 of the Public Official Election Act by failing to take measures for invalidation of registration against Nonparty 3.

3) The freedom and fairness of election was hindered due to an illegal act in the election process, such as forgery of Nonparty 3’s certificate of employment.

B. If the registration of Nonparty 3’s candidate becomes null and void, the number of votes obtained by Nonparty 3 and the number of votes obtained by Nonparty 2 who held Nonparty 3 are more than that of Nonparty 4, who is the elected, and Nonparty 4 was not elected. In a realistic sense, Nonparty 3 and the Plaintiff were the candidates who advocate the remuneration, and the candidates who claimed the remuneration were not a single candidate, which are likely to have renounced the election. Accordingly, the fact that the above election violated the above provisions has influenced the result of the instant election.

3. Determination

A. Relevant legal principles

Article 224 of the Public Official Election Act shall apply mutatis mutandis to a lawsuit seeking invalidation of an election for Superintendent of the Office of Education pursuant to Article 49(1) of the Education Autonomy Act, and even if there is a violation of the provisions concerning an election, the same shall apply mutatis mutandis only when it is deemed that the result of the election has influenced the election. The term “fact that violates the provisions concerning election” which is the grounds for invalidation includes the case where the election commission, which is the subject of the election management, violates the provisions concerning the management and execution of election affairs and where it is deemed that the freedom and fairness of the election, which is the basic ideology of the election, is substantially impeded because the elector is unable to vote by free judgment due to an illegal act committed by a third party, such as a candidate, if there is no violation of the provisions concerning an election (see Supreme Court Decision 2004Da544, Jun. 9, 2005).

(b)whether there is a violation of the provisions regarding the election.

1) Provisions on the candidate registration and invalidation of registration under the Education Autonomy Act and the Public Official Election Act

The competent election commission shall accept an application for registration of a preliminary candidate or an application for registration of a candidate immediately, but it shall not accept an application for registration not equipped with evidentiary documents concerning educational career under Article 24 (2) of the Education Autonomy Act: Provided, That where evidentiary documents concerning the eligibility of a candidate as prescribed by the National Election Commission Regulations are not attached, the application shall be accepted once, but the relevant election commission shall investigate the relevant matters (Article 49 (1), (3) 1, and 4 of the Education Autonomy Act, Articles 49 (8), and 60-2 (3) of the Public Official Election Act, Article 49 (8), and 60-2 (3) of the Public Official Election Act). If it is found that a candidate is ineligible for election after the registration of the candidate, the registration of the candidate shall be invalidated (Article 49 (1) of the Education Autonomy Act, Article 52 (1) 1

2) Whether the certificate of employment submitted by Nonparty 3 was forged or falsified

Comprehensively taking account of the overall purport of the arguments and the results of the fact-finding on the ○○ University, Nonparty 3 submitted a preliminary candidate’s certificate on February 9, 2018 under the name of president of ○○ University with documents related to the career under Article 24(2) of the Education Autonomy Act when registering a preliminary candidate. The Gyeonggi-do Election Commission inquireds Nonparty 3 preliminary candidate’s educational career at ○○ University, and the president of ○○ University sent a reply from March 31, 2015 to February 20, 2018 with Nonparty 3’s educational career as an education assistant professor at ○○○ University. Nonparty 3 preliminary candidate submitted a new certificate on April 2, 2018 under the name of president of ○○○ University with respect to education career exceeding three years. It is difficult to find otherwise to acknowledge that the Plaintiff submitted a false certificate of employment solely on the basis that the Plaintiff asserted otherwise.

3) Whether Nonparty 3 failed to have the educational experience under Article 24(2)1 of the Education Autonomy Act

A person who intends to become a candidate for the superintendent of the Office of Education shall have educational experience or educational administration experience for at least three years as of the start date of application for candidate registration, and education experience means a career of working as a teacher at a kindergarten under Article 2 subparagraph 2 of the Early Childhood Education Act, a school under Article 2 of the Elementary and Secondary Education Act, and Article 2 of the Higher Education Act (including an educational institution or lifelong educational establishment recognized as an equivalent academic background, which is established by other Acts) (Article 24 (2) 1 of the Education Autonomy Act).

Faculty members of a university shall be classified into professors, associate professors, assistant professors, and instructors (Article 14 (2) of the Higher Education Act), and Article 16 of the Higher Education Act shall meet the qualification requirements prescribed by the Regulations on the Criteria, etc. for Qualification for University Faculty Members or obtain recognition of qualifications, as prescribed by Articles 11-3 and 11-4 of the Educational Officials Act or Article 53-2 of the Private School Act, and shall be appointed as prescribed by Article 53-2 of the Private School Act, and shall be subject to deliberation on reappointment even after the term expires. Meanwhile, with respect to the service of private school faculty members, the regulations on teachers of national and public schools apply mutatis mutandis (Article 5 (1) of the Private School Act); while the main duties of the university faculty members are educating, guiding, and researching students; however, they may take full charge of education, guidance, academic research, or industry-academia-research cooperation under subparagraph 6 of Article 2 of the Industrial Education Education and Industry-Academia-Research Cooperation Promotion Act, as prescribed by the school regulations or articles of incorporation (Article 15 (2).

Meanwhile, requiring a person who intends to be the Superintendent of an Office of Education to have an educational experience or educational administrative experience as a public educational official for a certain period of time is to ensure that an educational expert who meets the qualification requirements required by the Early Childhood Education Act, the Elementary and Secondary Education Act, the Higher Education Act, and the Public Educational Officials Act, and who can be objectively recognized as having knowledge of education, can be an educational officer in charge of general administration (see, e.g., Constitutional Court en banc Decision 2007Hun-Ma17, Sept. 24, 2009).

In light of the legislative intent of Article 24(2) of the Education Autonomy Act that requires educational autonomy Act, the provisions and structure of the Higher Education Act, and the educational experience or educational administration experience to the candidates of the Superintendent of an Office of Education, “career as a teacher at a school under Article 2 of the Higher Education Act” under Article 24(2)1 of the Education Autonomy Act shall be deemed to be the career as a teacher, associate professor, assistant professor, assistant professor, and instructor under Article 14(2) of the Higher Education Act. Therefore, if a person is appointed as a teacher under Article 14(2) of the Higher Education Act and performs his/her duties, he/she may be deemed to be the career as a teacher.

Comprehensively taking account of the records in Gap evidence No. 1 and the fact finding about ○○ University, Nonparty 3 was appointed on March 31, 2015 at ○○ University, a school under Article 2 of the Higher Education Act, which is a full-time director of △△△△△△△△△△, as an associate professor, who is a teacher. According to the above school personnel management regulations, where the president specifically recognizes it, he/she may be employed as a full-time position in other agencies. Nonparty 3 is recognized as an associate professor pursuant to the above regulations, and Nonparty 3 is an associate professor at the above university for at least three years until April 2, 2018, and is engaged in his/her duties as a teacher by taking lectures and research. Accordingly, Nonparty 3 is equipped with career experience as prescribed in Article 24(2)1 of the Education Autonomy Act, and it does not change even if the term of office or the actual teaching hours during which he/she was demoted.

4) Conclusion

Therefore, on the premise that the certificate of employment submitted by Nonparty 3 is forged or that education experience as a candidate for the superintendent of education is not recognized to Nonparty 3, the Plaintiff’s assertion that the Defendant’s election affairs management by neglecting the duty to conduct an investigation pursuant to Articles 49(8), 60-2(3), and 272-2 of the Public Official Election Act, which are applied mutatis mutandis pursuant to Article 49(1) of the Education Autonomy Act, and failure to take measures to invalidate the registration as a violation of Article 52(1)1 of the Public Official Election Act, or that Nonparty 3 committed a normal illegal act is not acceptable.

(c) Whether or not an election has influenced the result thereof;

As alleged by the plaintiff, if the defendant discovered the non-party 3's eligibility for election before the election day and voluntarily removed the measure to invalidate the registration, all voters supporting the non-party 3 who were the third-class holder of the voting, or if the candidate registration of the non-party 3 becomes null and void, there is no evidence to prove that there was a result of the plaintiff's active participation in the voting in the highest number of votes and the non-party 4's failure to be elected.

4. Conclusion

Therefore, the plaintiff's claim is dismissed without merit, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ansan-chul (Presiding Justice)