[1] Whether only the fact that an administrative disposition was revoked in an appeal litigation after an administrative disposition can be determined immediately by the public official’s intentional or negligent act, and it can be determined that the administrative disposition constitutes a tort (negative)

[2] The standard for determining the State's liability for damages caused by the intention or negligence of a public official or examiner on the ground that errors in the setting of questions and the determination of the correct answers in the national examination under the Acts and subordinate statutes were found to be illegal

[3] The case holding that a certified public accountant's primary examination examiner's failure to pass the examination can not be deemed to have any intention or negligence with an objective duty of care in performing his duties to the public officials or examination committee members as long as the State's liability can be recognized

[1] Even if a certain administrative disposition has been cancelled in an appeal litigation after the judgment of res judicata, it cannot be determined that the pertinent administrative disposition was caused by a public official's intentional or negligent act and constitutes a tort. In light of the public official's standard, it is reasonable to deem that the public official in charge of such administrative disposition met the requirements for State compensation liability under Article 2 of the State Compensation Act in a case where it is recognized that the administrative disposition was lost objectively justifiable due to lack of objective duty of care. In such a case, whether the administrative disposition lost objective legitimacy should be determined by taking into account all the circumstances such as the type and nature of gains of infringement, the form and reason of the administrative disposition infringing, the victim's involvement in the exercise of the administrative disposition, and the degree of damages.

[2] In order to recognize the State's liability for damages caused by the intention or negligence of the examiner who participated in the examination or the examination examination system for the reason that the decision of the successful applicant was unlawful due to the error in the setting and decision of the questions in the examination to be implemented and managed by the State under the Acts and subordinate statutes, whether the examination is a social system that grants a specific qualification to an individual who has applied for the examination, in addition to the personal interest to grant a specific qualification, public interest-related care to the general public; whether the examination is given; whether the state agency or the public official under its jurisdiction has properly commissioned external professional examiners for the purpose of preparing the specific examination questions; whether the examination questions are given; whether the commissioned examination examiners have given the examination questions to the maximum extent possible; whether the examination questions were given from an objective point of view; whether the examination committee has different opinions in the process of making the examination; whether the first examination committee's duty of care to ask for error after the examination applicant has been granted the State's duty of care to determine whether the examination is legitimate or not.

[3] The case holding that a certified public accountant's primary examination examiner's failure to pass the examination can not be deemed to have any intention or negligence with an objective duty of care in performing his/her duties, as long as the State's liability can be recognized.

[1] Article 2 of the State Compensation Act, Article 30 of the Administrative Litigation Act / [2] Article 2 of the State Compensation Act / [3] Article 2 of the State Compensation Act

[1] [2] Supreme Court Decision 2001Da33789, 33796, 33802, 33819 (Gong2004, 8) decided Nov. 27, 2003 / [1] Supreme Court Decision 99Da70600 decided May 12, 200 (Gong2000Ha, 1403) decided Dec. 14, 2001 (Gong2002Sang, 276)

Plaintiff (Appointed Party) (Law Firm Yang & Yang, Attorneys Kim Sun-moo et al., Counsel for the plaintiff-appointed party-appellant)

Korea

Seoul High Court Decision 2001Na16984 delivered on September 12, 2001

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

1. The judgment of the court below

(1) The court below accepted the first 6th 6th 7th 10th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 1998. 16th 6th 6th 6th 6th 6th 6th 6th 6th 7.

2. The judgment of this Court

Even if any administrative disposition has been cancelled after an appeal litigation, it cannot be determined that the pertinent administrative disposition is illegal as it was caused by the intention or negligence of the public official immediately and constitutes a tort. It is reasonable to deem that the public official in charge of such administrative disposition fulfilled the requirements for State compensation as stipulated in Article 2 of the State Compensation Act in a case where it is recognized that such administrative disposition has lost objective legitimacy by fulfilling objective duty of care when considering the standard public official. In this case, whether the State has lost objective legitimacy or not shall be determined by the determination of whether there is a substantial reason to assume liability for damages to the State or local governments by taking into account all the circumstances such as the type and nature of gains of infringement, the form and reason of administrative disposition infringing upon, the victim's involvement in the examination, degree of damage and degree of damage in the examination, etc. (see Supreme Court Decisions 9Da7060, May 12, 2000; 200Da12679, Dec. 14, 2001).

In the case of this case, since a certified public accountant examination implemented by the Certified Public Accountant Act is a social system for examining the necessary knowledge and ability of a person who intends to be qualified as a certified public accountant, legal interests infringed upon by administrative disposition related to the decision of passing the examination can be deemed to include social or public interests in addition to personal interests. In the case of a certified public accountant examination in this case, the state agency or public official in charge of the management of the examination in this case shall select and appoint external experts for each subject in accordance with the requirements and procedures prescribed by Acts and subordinate statutes, and then the examination committee has established the problem in this case by such external examination committee. The above external examination committee did not have any particular opinion as to the appropriateness of the problem in this case and the decision of answer among the examination committee members at the time of the preparation of the examination in this case. Since the examination in this case is given a certain qualification to pass a multiple-stage examination, the examination in this case shall be deemed to have been conducted only by the first examination committee which grants qualifications to the defendant for the next second step after the examination examination in this case.

The judgment of the court below is erroneous in the misapprehension of legal principles that recognized the State's liability for compensation due to the intention or negligence of a public official or examiner related to the examination of this case, and this part of the appeal by the defendant is with merit, and the decision on the remaining grounds of appeal is

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)