(영문) 서울행정법원 2016.4.22. 선고 2015구합61412 판결

A. From May 201, the Plaintiff established and operated a private teaching institute for the purpose of music practice and theoretical education for elementary, middle, and high school students and the general public in accordance with the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons. From around December 2013, the Plaintiff established and operated a dong art professional school, which is a vocational skills development training establishment, in accordance with the Act on the Development of Workers’ Vocational Skills, pursuant to the Act on the Development of Vocational Skills.

B. On May 26, 2014, the Plaintiff applied for the assessment of 20 subjects, including Blus research, to the Defendant on May 27, 2014 pursuant to Article 3 of the former Act on Recognition of Credits (amended by Act No. 1329, Mar. 27, 2015; hereinafter “former Act on Recognition of Credits”). (c) On January 27, 2015, the Defendant issued a disposition of non-recognition of the assessment of 20 subjects on the following grounds (hereinafter “instant disposition”).

1. Area of basic requirements: Periodical facilities and equipment: The scale of a training room is insufficient to accommodate the quota per hour, and machinery, equipment, soundproof facilities, etc. are insufficient to operate a practical music major for a university degree course; 2. Area of operational conditions: 88/150 points;

3. Areas of learning: To acquire at least 105 points with reference points for rhym studies, etc.; to obtain less than 105 points with reference points for 8 subjects, such as practical music rhymology, but to exclude all subjects due to a lack of legal operational conditions;

[Ground of recognition] Facts without dispute, Gap 1 through 3, 5, 12 evidence (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Violation of the Administrative Procedures Act

The Defendant violated the Administrative Procedures Act by not setting and publicly announcing the criteria for dispositions, such as allocation of points by evaluation index applicable to the assessment and assessment. In addition, the Defendant did not present the basis for calculating points acquired by the Plaintiff in the assessment of the area of operational conditions and the assessment of the area of some learning subjects, and the reasons for evading the points.

(ii) the deviation and abuse of discretionary power;

The defendant secured an appropriate scale of practical training room and equipment, soundproof facilities are not an evaluation index, and soundproof facilities are awarded points higher than the standard points in the subjects which are indispensable in the evaluation of the area of study, but the evaluation of the basic requirements is inappropriate.

The defendant has set up and assessed the evaluation index in the area of operational conditions beyond the scope delegated by the former Act on Recognition of Credits or its subordinate regulations, and it has been assessed without the evaluation index or evaluation standard in the area of learning subjects, which is not a reasonable exercise of discretion.

(iii)other arguments.

Since recognition of credits, which is only an examining body established pursuant to Article 20 of the Enforcement Decree of the Act on Recognition of Credits, the defendant violated the above Act and subordinate statutes since the defendant made a decision in excess of his/her authority, the instant disposition is in violation of the above Act and subordinate statutes. The instant disposition is in violation of the principle of proportionality

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination on the assertion of violation of the Administrative Procedures Act

A) Article 20(1) of the Administrative Procedures Act provides that "the administrative agency shall specifically determine and publicly announce the necessary disposition standards in light of the nature of the relevant disposition." Article 20(2) provides that "the public announcement of the disposition standards under paragraph (1) may not be made in cases where it is substantially difficult in light of the nature of the relevant disposition or where there are reasonable grounds that it is deemed that the public safety or welfare may be substantially harmed by the nature of the relevant disposition." In addition, Article 23(1) of the Administrative Procedures Act provides that "the administrative agency shall, in principle, present the grounds and reasons to the parties when rendering a disposition

B) In light of the following circumstances recognized by relevant Acts and subordinate statutes and evidence, the Defendant did not specifically determine and publicly announce the criteria for assessment and assessment prior to the instant disposition, and there is no reasonable ground to deem that such publication of the criteria for assessment is considerably difficult due to the nature of the relevant disposition or that it substantially undermines public safety and welfare. Therefore, the instant disposition is unlawful as it violates Article 20(1) of the Administrative Procedures Act.

① Article 3(4) of the former Act on Recognition of Credits provides that qualifications for professors and instructors who serve as the basis for recognition of evaluation, learning facilities and learning facilities, and details of the course of study shall be prescribed by Presidential Decree. Article 5(1) of the former Enforcement Decree of the Act on Recognition of Credits (amended by Presidential Decree No. 26549, Sep. 25, 2015; hereinafter referred to as the "former Enforcement Decree of the Act") provides that the standards for evaluation are outlined, and Article 5(2) of the former Enforcement Decree of the Act provides that "the number of professors and instructors under paragraph (1), detailed standards for the number of learning facilities, learning facilities, and learning courses, and other matters necessary for evaluation shall be determined by Ordinance of the Ministry of Education." Article 3(1) of the former Enforcement Rule of the Act on Recognition of Credits (amended by Ordinance of the Ministry of Education No. 75, Oct. 20, 2015; hereinafter referred to as the "former Enforcement Rule of the Act") provides that the Minister of Education shall establish the basic plan 201 to 4.

(2) However, the above facts alone cannot be deemed as having been specifically determined and publicly announced by the Defendant to meet the criteria for assessment and approval. In particular, according to the instant basic plan and the evaluation manual of this case, in the case of evaluation in the territory of basic requirements, if it fails to meet one of the criteria, the determination of appropriateness on all subjects shall be made. The evaluation criteria in the territory of the basic requirements include whether it is adequate to secure laboratories and practice rooms and whether it has secured equipment and materials for experiments and practice, but the list of equipment and materials for experiments and practice required

In 2-4-2 of the instant basic plan, the Defendant only determined that “a lecture room, laboratory, practice room, administrative room, counseling room, and library room” as a learning facility, and did not set a reasonable scale. The learning facility is equipped with the facilities determined by the Defendant for each course of study, but did not publicly announce what the Defendant is the facilities determined by the Defendant. In such cases, even if the institution that applied for the assessment and recognition satisfies other basic requirements based on the Defendant’s arbitrary judgment, it is likely that the institution that applied for the assessment and recognition may be judged inappropriate for the whole subject, even if it satisfies the other basic requirements. The Defendant established the work recognition guidelines (Evidence No. 9) on Jan. 6, 2016. The following of the instant case, the Defendant established the work recognition guidelines (Evidence No. 9) on recognition of credits, etc., and the area standard for each student’s area, etc., and the list and quantity of the facilities to be secured by each major, as well as the list and quantity of the facilities.

③ The Plaintiff was unable to find out whether the Defendant failed to specifically announce the criteria for evaluation in the territory of the basic requirements and was judged inappropriate in the area of the basic requirements. If the Defendant had published the specific criteria for evaluation in advance, the Plaintiff filed the instant application by supplementing the deficiencies of the Plaintiff, and the Defendant could clearly determine whether the size of the practice room is adequate, and whether the necessary equipment is equipped.

(4) The Defendant asserts that, in a prior publication of the criteria for assessment and approval, the disclosure of the criteria would result in a qualitative decline of the educational institution by having an institution’s minimum requirements, and thus, non-disclosure of the criteria accords with the purpose of the assessment and approval system. However, such a problem is not an appropriate method to keep the evaluation criteria open to the public by raising the criteria for assessment and approval so that the educational institution satisfies the adequate requirements. Furthermore, as seen in the evidence No. 23, the Defendant’s assertion may bring about unfair consequences between the person who obtained the criteria for assessment and the person who did not, as seen in the evidence No. 23, obtained the criteria for assessment and approval. Considering these circumstances, it is difficult to view the Defendant’s assertion as “the reason for publication of the criteria for assessment and approval

C) In addition, in light of the following circumstances acknowledged by evidence, the Defendant, while taking the instant disposition on the ground that it falls short of the standard point in the evaluation of operational conditions, did not present all the grounds and reasons for the Plaintiff obtaining less than the standard point. Therefore, the instant disposition is unlawful in violation of Article 23(1) of the Administrative Procedures Act.

① Article 23(1) of the Administrative Procedures Act purports to exclude the arbitrary decision of an administrative agency and allow the parties to properly cope with the administrative remedy procedure. As such, in full view of the contents stated in the written disposition, relevant statutes, and the overall process up to the relevant disposition, where it is sufficiently known that the parties at the time of the disposition have made a certain ground and reason, and it is deemed that there was no particular hindrance to the party’s moving into the administrative remedy procedure, the disposition cannot be deemed unlawful due to such failure, even if the grounds and reasons for the disposition are not specified in the written disposition (see, e.g., Supreme Court Decision 2012Du12570, Sept. 4, 2014).

② As seen earlier, the Defendant, while rendering the instant disposition, made it clear that the Plaintiff acquired the standard points for each evaluation index in the evaluation of operational conditions, and that the Plaintiff did not pass the evaluation of operational conditions since the total point of 88 points obtained by the Plaintiff was 8, and did not disclose at all whether the points obtained by the Plaintiff were calculated on the basis of any factual basis. If the Plaintiff did not present the factual basis for the disposition, there is no way to know it even if it is assessed on the basis of facts mistakenly recognized by the Defendant. In particular, in the instant case, the Plaintiff’s application and evidentiary materials submitted by the Plaintiff, together with the results of the on-site investigation conducted by the person in charge of the National Institute of Lifelong Education under the Defendant’s control, and if the Plaintiff deemed the basic materials for the

③ In addition, if the Defendant did not publish the criteria for disposition as in the instant case, it is difficult for the Plaintiff to generally understand whether the points it acquired are properly calculated or not.

Even if examining the contents of the former Act on Recognition of Credits, the basic plan of this case, and the instant assessment manual, it is difficult to anticipate points that the applicant can obtain at the location of the applicant for assessment recognition. In such a situation, the applicant for assessment recognition is bound to repeat unnecessary procedures every year or pay additional expenses.

2) As above, the instant disposition is unlawful due to its procedural defect, and thus ought to be revoked. The Defendant is required to correct procedural defect and make a new disposition. It is difficult to find out the details of the new disposition that the Defendant makes. Accordingly, it is not necessary to determine whether the instant disposition is subject to substantive illegality.

3. Conclusion

The plaintiff's claim is reasonable, and the costs of lawsuit are assessed against the losing defendant. It is so decided as per Disposition.