[1] The purport of the Framework Act on Qualifications that comprehensively permits the establishment, management, and operation of a private qualification, which provides for the areas subject to restrictions on private qualifications, and the meaning of "sectors related to acts prohibited by other Acts and subordinate statutes" under Article 17 (1) 1 of the Framework Act

[2] In a case where the Korea Land Compensation and Management Board, an incorporated association, applied for registration as a private qualification to the Korea Land Compensation and Development Institute, but the Korea Vocational Skills Development Institute rejected disposition, the case affirming the judgment below that the above disposition is legitimate on the ground that a part of its duties is prohibited by the former Attorney-at-Law Act, which is a national qualification-related statute, and that it belongs to a private qualification restriction field under Article 17 (1) 1 of the Framework Act on Qualifications

[1] The purport of Article 17(1)1 of the Framework Act on Qualifications that comprehensively permits the establishment, management, and operation of a private qualification is to ensure, in principle, the freedom of occupation or the freedom of general action through the establishment, management, and operation of various private qualifications to the maximum extent possible, and to exceptionally regulate private qualifications, etc. in violation of legal order. In light of the purport and purpose of the private qualification system, the method and contents of regulations on the areas subject to restrictions on private qualifications, the systematic interpretation of the areas subject to restrictions on private qualifications, the principle of minimum infringement on fundamental rights, etc., “sectors related to acts prohibited by other Acts and subordinate statutes” under Article 17(1)1 of the Framework Act on Qualifications shall be deemed to be limited to cases where an act, which is a duty, is absolutely prohibited pursuant to compulsory provisions, or where an unqualified

[2] In a case where the Korea Land Compensation and Management Agency, which is entrusted by the Minister of Education, Science and Technology with the registration of a private qualification, applied for the registration of a compensation manager who intends to establish, manage, and operate the same as a private qualification, but the Korea Vocational Skills Development Institute rendered a rejection disposition, the case affirming the judgment below that the above disposition is lawful on the ground that the qualification of a compensation manager belongs to the field of limitation under Article 17 (1) 1 of the Framework Act on Qualifications, on the grounds that "the consultation, conclusion and payment of compensation" and "the affairs related to the treatment of civil petitions and litigation related to compensation" under the former Attorney-at-Law Act (amended by Act No. 8991 of March 28, 2008), and "the affairs related to registration of land, etc." under the former Attorney-at-Law Act and the former Administrative Justice Act (amended by Act No. 9212 of December 26, 2008) since it constitutes a case where the act of a disqualified person is prohibited.

[1] Articles 17(1) and (2), and 39 subparag. 1 of the Framework Act on Qualifications / [2] Article 17(1) of the Framework Act on Qualifications; Articles 3, 34, and 109 of the former Attorney-at-Law Act (amended by Act No. 8991, Mar. 28, 2008); Articles 2(1)1 and 12 of the former Administrative Justice Act (amended by Act No. 9212, Dec. 26, 2008); Article 81(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 11017, Aug. 4, 2011); Article 34 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 2(1)1 of the former Administrative Justice Act (amended by Act No. 9214, Dec. 1, 2008); Article 10 subparag. 4 of the Enforcement Decree of the Act

Korea Land Compensation and Management Association (Law Firm Jinjin et al., Counsel for the plaintiff-appellant)

Korea Vocational Ability Development Institute (Attorney Choi So-young, Counsel for defendant-appellant)

Korean Bar Association (Law Firm Cheong, Attorneys Park Jae-in et al., Counsel for the plaintiff-appellant)

The Minister of Justice

Seoul High Court Decision 2010Nu24397 decided April 7, 2011

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Article 17 of the Framework Act on Qualifications provides that any corporation, organization, or individual, other than the State, may establish, manage, and operate a private qualification, except for the areas subject to the restriction by the Act (hereinafter “sector subject to the restriction on private qualification”). However, a person who newly establishes, manages, and operates a private qualification falling under the field subject to the restriction by the Minister of Education, Science and Technology, shall register it with the relevant specialized institution or organization designated by the Ministry of Education, Science and Technology (Paragraph 2). As for the restriction on private qualification, “sectors related to the activities prohibited by other Acts and subordinate statutes (Paragraph 1 subparag. 1)” (Paragraph 2), fields directly connected to the lives, health, safety, and national defense of citizens (Paragraph 1 subparag. 3), and other fields determined by Presidential Decree as inappropriate to operate it as a private qualification (Paragraph 1 subparag. 4). Moreover, Article 39 subparag. 1 of the Framework Act on Qualifications shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding three million won.

As such, the purport of the Framework Act on Qualifications comprehensively allowing the establishment, management, and operation of private qualifications, setting forth the areas subject to restrictions on private qualifications is to ensure, in principle, the freedom of choice or the freedom of general action through the establishment, management, and operation of various private qualifications to the maximum extent, but exceptionally, to regulate private qualifications, etc.

In light of the purport and purpose of the private qualification system, the method and content of regulation on the areas subject to restrictions on private qualifications, the systematic interpretation of the areas subject to restrictions on private qualifications, and the minimum infringement principle of fundamental rights, etc., the term “sectors related to acts prohibited by other Acts and subordinate statutes” under Article 17(1)1 of the Framework Act on Qualifications shall be deemed to be cases where, in a private qualification with certain duties, the act subject to duties is absolutely prohibited pursuant to the mandatory provisions, or where the performance of duties by an unqualified person is prohibited by the relevant

2. According to the reasoning of the lower judgment, the Plaintiff’s qualification as a compensation manager (hereinafter “instant qualification”) can be entrusted to the relevant specialized institution, etc. pursuant to Article 81(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 11017, Aug. 4, 2011; hereinafter “Public Works Projects Act”) and Article 43(2) of the Enforcement Decree of the said Act with the following duties: (i) the establishment, public announcement, and perusal of a business compensation plan; (ii) the survey of public records, such as land and building ledgers; (iii) the survey of matters related to ownership and rights other than ownership, such as land (Article 3); (iv) the survey of matters entered into land registers and cadastral records (Article 5); (v) the survey of land records and goods protocols; (v) the conclusion of a contract on compensation for the remaining land and land outside the relevant area (Article 6); (v) the payment of compensation for business, agricultural and fishery loss and compensation (excluding the payment of compensation). 1).

In light of the above facts in light of the legal principles as seen earlier, the qualification of this case is the content of each individual work regarding compensation under the Public Works Act, and the Public Works Act merely limits the subject of entrustment of compensation work (Article 81(1)), and the relevant work itself is absolutely prohibited or does not prohibit an act of unqualified person by setting a national qualification. Therefore, it is difficult to deem that the qualification of this case is prohibited by the Public Works Act.

However, the former Attorney-at-Law Act (amended by Act No. 8991, Mar. 28, 2008; hereinafter "the Attorney-at-Law Act") provides that "act concerning litigation and request for administrative disposition and vicarious performance of general legal affairs" (Article 3); "Preparation of registration or other documents necessary for application for registration (Article 2 subparagraph 3)", and the former Administrative Justice Act (amended by Act No. 9212, Dec. 26, 2008; hereinafter "administrative Justice") provides that "Preparation of documents submitted to an administrative agency (Article 2 (1) 1)" shall be prohibited from performing duties by a disqualified person except where permitted by other Acts and subordinate statutes; Article 34 of the Attorney-at-Law Act; Article 3 of the Attorney-at-Law Act (Article 109; Article 74 of the Attorney-at-Law Act); and Article 10 of the former Administrative Attorney-at-Law Act (amended by Act No. 9210, Dec. 12, 2002) shall be prohibited from performing such duties (Article 1).

However, the lower court, on the ground that the instant qualification was prohibited by the Public Works Act, determined that the instant disposition rejecting the registration was lawful on the ground that the instant qualification constitutes a field subject to restrictions on private qualifications. Although there were some inappropriate parts in its reasoning, the lower court’s conclusion that the instant disposition was lawful and rejected the Plaintiff’s assertion is justifiable, is justifiable. In so doing, it did not err by misapprehending the purpose and content of the private qualification system or the legal doctrine on the interpretation of Article 17(1)1

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)