2017Nu35075 Revocation of disposition of suspension of recruitment

Educational Foundation of Seoul Digital University

The Minister of Education

Seoul Administrative Court Decision 2016Guhap78462 decided January 20, 2017

August 18, 2017

September 15, 2017

The judgment of the first instance shall be revoked.

The defendant's disposition of suspending recruitment of 40% (1,200 persons) compared to the fixed number of admission in 2017 that the plaintiff made to the plaintiff as of October 17, 2016 shall also be revoked.

All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. The reasoning of the disposition and the reason why the relevant law is stated in this part is as stated in the corresponding part of the reasoning of the judgment of the court of first instance (from the second to third to seventh out of the reasoning of the judgment of the court of first instance), and thus, it shall be accepted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure

2. Whether the instant disposition is lawful

A. As to the legal basis of the disposition, this part of the reasoning of the court is identical to the corresponding part of the reasoning of the judgment of the court of first instance (as stated in the judgment of the court of first instance, from 3th to 5th class 18th class among the grounds of the judgment of the court of first instance), it shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of

B. Whether the discretionary authority is deviates or abused

1) The plaintiff's assertion

In rendering the instant disposition, the Defendant knew that the Plaintiff recruited new students only during the first semester, and determined the recruitment suspension rate based on the recruitment rate of new students of the first semester, and did not consider the exercise of discretionary power even if it was aware that the government subsidy was unreasonable in the process of calculating the standard amount of basic income for profit-making purposes, and the instant disposition constitutes a case where the Plaintiff is much more likely to incur losses due to the instant disposition than the public interest to be achieved, and thus, the instant disposition constitutes an error of deviation from and abuse of discretionary authority.

2) Determination

A) Relevant legal principles

In a judicial review on discretionary action, the court shall examine only whether the pertinent act is a deviation or abuse of discretion without drawing a reader’s conclusion, taking into account the room for determining the public interest based on the discretion of the administrative agency, and shall examine whether the pertinent act is a deviation or abuse of discretion. The subject of the review on whether such a deviation or abuse of discretion is true (see, e.g., Supreme Court Decisions 98Du17593, Feb. 9, 2001; 2004Du6181, Jul. 14, 2005).

B) Specific determination

Examining the aforementioned facts and evidence, Gap's evidence, evidence Nos. 5, 7, 15-18, 20, 21, 23-25, and evidence Nos. 1, 2, and 12, the following circumstances, etc., which can be acknowledged by adding the whole purport of the pleadings, are erroneous in the misapprehension of the legal principles as seen earlier, or in violation of the principle of proportionality and equality.

(1) misunderstanding of facts about the basic facts of the instant disposition

(A) The Plaintiff’s recruitment rate for new students compared to the Plaintiff’s admission quota for the last three years, taking into account the Defendant’s dispositions in this case, is 65.3% in 2014, 65.8% in 2015, and 71.7% in 2016. However, the Plaintiff has recruited new students on a two-yearly basis each year up to the time of the disposition in this case. The above number considered by the Defendant constitutes the recruitment rate for new students in the first semester. The Plaintiff’s recruitment rate for new students (one and two semesters total) during the actual period is about 84.8% in 2014, about 84.7% in 2015, about 90.0% in 2016, and about 90.0% in 2016. Accordingly, the average recruitment rate for new students that was referred to by the Defendant in this case is about 17.5% in comparison with the Plaintiff’s actual recruitment rate for new students.

(B) The Plaintiff’s recruitment rate of new students is the key factor to measure the actual effect and degree of the sanction of the instant disposition, such as the suspension of the recruitment of new students. However, as of the year 2016, according to the Defendant’s recruitment rate for new students, the actual disadvantage expected to be the Plaintiff in the recruitment of new students due to the instant disposition is 11.7% (71.7% - 60%). On the other hand, according to the actual recruitment rate for new students, 30% (90.0% - 60%) and more than 2.5 times in the degree of actual disadvantage. Accordingly, it can be evaluated that the Defendant misleads the Defendant of the matters concerning the recruitment rate of new students in the instant disposition, which is an important basis for determining the actual effect and degree of the sanction of the instant disposition.

(C) In the disposition of this case, the defendant considered 62.8% (1,882) of the basic property for profit of the plaintiff as the basis of the recruitment suspension rate, and determined 40% of the annual 5 items (1), considering the following items (i) details of the violation, (ii) details and seriousness of the violation, (iii) frequency and place of improvement, (iv) protection of legitimate interested persons, and (v) degree of undermining financial soundness). In consideration of the "protection of legitimate interested persons", the above 40% of the annual 40% of the annual 40% of the annual 40% of the annual 40% of the annual 5th annual 5th annual 5th regular 5th annual 5th regular 5th annual 5th regular 5th regular 5th regular 5th regular 5th regular 5th regular 5th regular 5th regular 5th regular 5th regular 5th regular 5th regular 5th regular 5th regular 5th regular 5th regular 1st regular 2 year.

However, it is difficult to view the above facts alone that the defendant corrected the existing mistake about the recruitment rate of new students through the above estimate fund statement. Even if the defendant partially reduced the recruitment suspension rate by taking into account the figures stated in the above estimate fund statement, it is merely a reflection of the economic aspect of the disposition of this case, which is nothing more than a result. It is difficult to view that the disposition of this case has taken into account the overall disadvantage of the plaintiff, i.e., the overall disadvantage of the plaintiff, e., the ripple effect of the disposition of this case, and the limitation

(2) Violation of the principle of proportionality and equality

(A) In calculating the standard amount of securing basic property for profit, the Defendant, who received the national subsidy, excluded only the amount of money and the amount of donations from the deduction. However, in calculating the standard amount of securing basic property for profit, if the national subsidy is not deducted, the amount equivalent to the above amount of the national subsidy is double appropriated as the amount of tuition income, thereby raising only the standard amount of securing basic property for profit without an increase of actual income. For these problems, the Enforcement Rule of the Regulations on the Establishment and Operation of Universities was amended as of July 16, 2015, and the national subsidy was deducted in calculating the standard amount of securing basic property for profit.

However, the “cyber University Establishment and Operational Rules” did not stipulate the above amendment. As a result, even in the instant disposition, approximately KRW 2.7 billion were not deducted from the national subsidy in the process of calculating the standard amount of basic property for profit to the Plaintiff. Therefore, the Defendant’s disposition of the instant cyber university was unlawful merely because it did not deduct the national subsidy when calculating the standard amount of basic property for profit to the Plaintiff pursuant to the “Establishment and Operational Rules of the said cyber university”. However, it cannot be said that there were either formal defects or defects. However, if the failure to deduct as above results in discrimination between the university and the Plaintiff without reasonable grounds compared to the general university, and if there were considerable damages to the Plaintiff, it would be contrary to the principle of proportionality and equality. However, in view of the following circumstances revealed by the aforementioned facts and evidence, namely, (i) the Plaintiff’s failure to secure basic property for profit to the Plaintiff, based on the standard calculated by the Defendant, the Defendant did not change the ratio of basic property for profit to KRW 62.8 to 55%, and (ii) the Defendant did not sufficiently recognize the issue of the principle of dual government subsidy.

(B) Whether the purpose and means of the disposition are appropriate

The purpose of cyber colleges requires cyber colleges to secure fundamental property for profit-making purposes is to promote the financial soundness of cyber universities by preventing the poor operation of cyber colleges and excessive profit-making. Accordingly, the instant disposition on the ground of non-compliance with an order to secure fundamental property for profit-making purposes does not simply consider whether the uniform criteria, such as the standard amount of securing fundamental property for profit-making purposes, are met, but also to take into account the circumstances leading up to failure to secure basic property for profit-making purposes and whether there was a risk of infringement of students’ right to learn. Accordingly, the Plaintiff’s act of securing basic property for profit-making purposes cannot be seen as being found to be improper since the Plaintiff’s act of securing basic property for profit-making purposes was insufficient as a result of the Plaintiff’s failure to secure basic property for profit-making purposes.

(C) The Defendant’s significant imbalance between public and private interests is promoting the financial soundness of universities as seen above. On the other hand, the Plaintiff could not substantially supplement 25% of the average recruitment rate of new students in 2014 (average 85.1%) due to the instant disposition. Accordingly, not only financial losses caused by the decline in the amount of tuition but also intangible damages, such as the decline in the re-registration rate of students, the decline in the number of students, the degree of education due to the decrease in the number of students, the decline in the quality of education due to the reduction in the amount of tuition, and the limitation on the right to study of students using cyber colleges. In short, it is difficult to view that the Plaintiff’s efforts to secure the basic property of cyber universities to achieve the quality of the education due to the increase in the number of students, not by the increase in the rate of basic property of cyber universities, rather than by the increase in the rate of basic property of cyber universities.

3. Conclusion

If so, the plaintiff's claim of this case shall be accepted, and since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal shall be accepted and the judgment of the court of first instance shall be revoked and the disposition of this case shall be revoked and it is so decided as per Disposition

The presiding judge, the full-time judge

Judges Singing on Board

For the purpose of judge sex impulse

1) The Defendant asserts that, in the case of a general university and a cyber college-type lifelong educational establishment, the criteria for securing basic property for profit-making purposes are 100% of the school accounting’s operating revenues and 50% of the school accounting revenues in the case of a cyber university. Since cyber university’s unique characteristics were fully considered, in the case of a cyber university, it cannot be deemed unreasonable discrimination on the ground that subsidies from the National Treasury were not deducted from the calculation of the standard amount for securing basic property for profit-making purposes. However, as seen earlier, the issue of national subsidies was raised because national subsidies were dually appropriated in calculation of the standard for securing basic property for profit-making purposes, it is difficult to view that the circumstance cited by the Defendant is resolved or rationalizing such discrimination is difficult, and in the case of a cyber college-type lifelong educational establishment, the standard for securing basic property for profit-making purposes is 100% of the school accounting’s operating revenues, but it can be deemed as a guarantee

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.