Whether the act of excluding candidates included in the list of candidates for promotion by the method of promotion examination by the list of candidates for promotion under the Public Educational Officials Act constitutes a disposition subject to appeal litigation (affirmative)

Article 2(1)1 of the Administrative Litigation Act, Articles 19(1), 20(1) and (2), and 21(1) of the Elementary and Secondary Education Act, Articles 13, 14, 29-2(1), 30 subparag. 1, and 33(1) of the Public Educational Officials Act, Articles 1, 2(1)2, and 40(2) and (4) of the Regulations on Promotion of Public Educational Officials, Articles 1, 2(1)2, and 40(1) of the Decree on the Appointment of Educational Officials, Articles 14(1) and 16(1) of the Decree on the Appointment of Public Educational Officials

Plaintiff (Law Firm Shin, Attorneys Noh Jeong-hee et al., Counsel for the plaintiff-appellant)

The superintendent of the Office of Education of Gyeonggi-do (Law Firm Gangnam, Attorney Early Deferred)

Seoul High Court Decision 2016Nu61176 decided January 12, 2017

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

The grounds of appeal are examined.

1. A. Article 31(4) of the Constitution provides that the autonomy, expertise, etc. of education shall be guaranteed under the conditions as prescribed by Act. Since expertise of teachers’ duties is a social and ethical characteristic that requires high level of autonomy and social responsibility in relation to their social roles, such as other professional doctors, attorneys-at-law, or adults, teachers shall have a high level of vocational ethics in performing their duties. Article 31(6) of the Constitution provides that basic matters concerning teachers’ status shall be prescribed by Act. As such, it is intended to provide for basic matters concerning teachers’ status as an Act, which include teachers’ remuneration and working conditions, etc. In order to guarantee more effective basic rights to receive citizens’ education (see Constitutional Court en banc Decision 89Hun-Ga106, Jul. 22, 1991).

B. Article 19(1)1 of the Elementary and Secondary Education Act provides that elementary schools, middle schools, high schools, etc. shall have principals, assistant principals, advanced skills teachers, and teachers. Article 20(1) of the said Act provides that the principal shall take charge of school affairs, guide and supervise school personnel under his/her control, educate students, and educate students. Article 20(2) provides that the assistant principal shall assist the principal, manage school affairs, educate students, and act for the principal when the principal is unable to perform his/her duties due to inevitable reasons. Furthermore, Article 21(1) provides that the principal and the assistant principal shall be those who have undergone certain career, retraining, etc. and obtain a certificate of qualification examined and granted by the Minister of Education, as prescribed by Presidential Decree.

(c) According to the Public Educational Officials Act, the principal shall be appointed by the President on the recommendation of the Minister of Education (Article 29-2 (1)), and the assistant principal shall be appointed by the Minister of Education, but the Minister of Education may partially delegate his/her right to appointment to the head of an educational administrative agency (Article 30 subparagraph 1 and Article 33 (1)). Furthermore, the public educational officials shall immediately engage in the same kind of duties and be based on their career rating, retraining records, performance records, and other actual proven capabilities, as prescribed by Presidential Decree (Article 13). Meanwhile, the person who has the authority to appoint public educational officials or the authority to recommend appointment shall prepare and keep the list of candidates for promotion by qualifications (Article 14 (1)), as prescribed by Presidential Decree, within the maximum of 0 times the total number of persons subject to special qualifications prescribed by Presidential Decree, or within the scope of 10 times the number of persons subject to promotion, including those who are subject to disciplinary measures, if he/she is subject to promotion and appointment by the second-class rank of appointment authority.

D. According to the provisions of such statutes, a person who has the authority to appoint public educational officials shall examine whether candidates entered in the promotional register are promoted in the order of high priority among the candidates who are within three times the vacant positions, and accordingly, a candidate included in the promotional register is expected to undergo justifiable examination from the appointment authority. However, in a case where the appointment authority, etc. excluded candidates included in the promotional register for arbitrary reasons from the promotional, if such exclusion disposition is not considered as a disposition subject to appeal litigation, then there is no other means of remedying the rights accordingly. Therefore, the act of excluding candidates included in the promotional register from the promotional appointment examination conducted by the promotional examination method under the Public Educational Officials Act constitutes a disadvantageous disposition, which is subject to appeal litigation.

However, the appointing authority may decide whether to promote the candidates included in the list of candidates for promotion by conducting a certain examination, and it does not necessarily require high-ranking candidates in the list of candidates for promotion. Furthermore, in the promotion of assistant principals who assist and act as an agent for the principal with broad authority over education in elementary and secondary schools, evaluation is required as to whether a certain candidate guarantees citizens’ right to receive education more effectively and meet the expectations of parents and students, who are educational consumers, and whether a certain number of discretion is given to the appointing authority rather than an administrative disposition against the general public or a disciplinary action against a public official, to the extent prescribed by statutes. Accordingly, if a decision to exclude the candidates included in the list of candidates for promotion does not violate the relevant statutes and regulations governing the qualifications of the candidates for promotion, and if there is assertion and certification of the fact that the decision to exclude the candidates included in the list of candidates for promotion is based on reasonable grounds under social norms, it should not be readily determined as unlawful.

2. On August 18, 2014, after the record of disciplinary action against the Plaintiff was cancelled on November 2, 2013, the lower court determined that the Defendant’s exclusion of the Plaintiff’s assistant principal from abuse of discretionary authority is reasonable, since the Plaintiff’s disciplinary action’s violation of disciplinary action against the Plaintiff’s assistant principal cannot be deemed seriously serious, since the Plaintiff’s right to expect or gain trust in relation to the Plaintiff’s assistant principal appointment compared to the public interest to ensure fairness, transparency, and adequacy of the appointment of assistant principal, should be excluded from the subject of promotion regardless of cancellation of the disciplinary action record.

3. However, examining the reasoning of the judgment below in light of the aforementioned legal principles, it is difficult to accept the judgment of the court below for the following reasons.

A. On March 1, 1987, the Plaintiff was newly appointed as a public educational official for elementary school. On May 10, 2010, the Plaintiff was subject to a disciplinary measure on reprimand on November 2, 2010, by providing the Nonparty with KRW 100,000 in cash for the head of the school, for the purpose of leading the head of the school, leading the head of the school, leading the head of the axis, supervising the head of the school, and providing the students with drinking water.

B. The record of the above disciplinary action was cancelled on November 2, 2013 after three years from the date of the disposition, and the Defendant promoted 142 of the candidates listed in the list of candidates for the assistant principal of elementary school in March 1, 2015 as assistant principal, but excluded the Plaintiff.

C. As seen earlier, the principal of an elementary school, middle school, and high school is the person in charge of general administration of school affairs, guidance and supervision of school personnel under his/her control, and education of students, and the assistant principal assists the principal in the principal, and the principal is in a position on behalf of the principal when the principal is unable to perform his/her duties due to unavoidable reasons. Therefore, the assistant principal is particularly in a higher level of morality compared to the general teachers, and it is natural that it should be set an example to the teachers and the students. Furthermore, Article 14(2) of the Framework Act on Education provides that teachers shall endeavor to improve their character and qualities that they should have as educators.

D. The proposal of the criteria for promotion related to the fourth misconduct prior to the Personnel Committee of the Gyeonggi-do Office of Education is inappropriate because it is not appropriate to exclude it from promotion without considering the length of the expiration period or the seriousness of the case, even though there is no legal basis.

E. However, even if the plaintiff's misconduct provided money and valuables to the principal of the 13-year elementary school teaching elementary school who is a minor elementary school teacher for reasons not justified in society, and caused reprimand, it cannot be viewed as minor misconduct in light of social norms in examining and evaluating whether the principal has the ability and qualities suitable for promotion of assistant principal.

F. Even if the record of disciplinary action against the Plaintiff was cancelled due to the lapse of the period, insofar as it was related to the fact of misconduct in receiving money and valuables relatively near the past in the examination of promotion, it does not constitute a ground for consideration.

G. In light of such circumstances and the broad discretion on the promotion of the Defendant’s assistant principal’s assistant principal, it is difficult to readily conclude that the instant disposition of exclusion from the promotion of the promotion of the instant case is excessively harsh to the Plaintiff to the extent that it considerably lacks validity under the social norms, thereby deviating from or abusing the scope of the discretion.

4. Therefore, the lower court’s determination that the instant disposition was unlawful as it deviates from or abused the discretion, is erroneous in the misapprehension of the legal doctrine as to deviation and abuse of discretion in the promotion of public educational officials, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

5. Therefore, without examining the remaining grounds of appeal, 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 Park Jung-hwa (Presiding Justice)