(영문) 서울행정법원 2017.1.20. 선고 2016구합82416 판결

The defendant's disposition of invalidation of the College Ability Test rendered to the plaintiff on November 17, 2016 or November 28, 2016 shall be revoked.

Reasons

1. Details of the disposition;

On November 17, 2016, the Plaintiff applied for the College Ability Test in Seoul High School in 2017, and applied for the examination without submitting a portable phone (hereinafter referred to as “the instant phone”) to the supervisor on the date of the examination.

For the foregoing reasons, the Defendant submitted 'written statement of Cheating to the effect that the Plaintiff was a portable telephone device in a bank' from the Plaintiff on November 17, 2016, and 'written statement of Cheating to the effect that the Defendant was submitted 'written statement of Cheating to the effect that the Plaintiff was found to have committed a Cheating, ② the Plaintiff was found to have committed a Cheating, ③ the Plaintiff’s request for a measure to hear the small noise of vibration during the examination

① On November 28, 2016, the Defendant held a meeting of the Committee for Deliberation on Illegal Acts in 2017, and deliberated on the mere possessor of a portable phone, etc. among the Cheating discovered at the site of the Examination on Academic Ability Test, only the relevant test becomes null and void, and notified the Plaintiff of the result of the deliberation on December 2, 2016.

[Ground of recognition] Facts without dispute, entry of Eul's evidence Nos. 1 to 9, purport of the whole pleadings

2. Whether the disposition is lawful;

A. Relevant provisions

Article 34 (3) of the Higher Education Act provides that "the Minister of Education may conduct a test prescribed by Presidential Decree to utilize it as admission screening data," and Article 34 (4) of the same Act provides that "the Minister of Education shall invalidate the test for a person who has committed an unlawful act in the test under paragraph (3) and shall suspend his/her application for the test for a year following the year in which the test is executed: Provided, That the Minister of Education shall not suspend his/her application for a person who commits a minor unlawful act prescribed by Presidential Decree, such as holding or bringing in prohibited goods for fair

On the other hand, Article 6 (1) of the Regulations on Handling Cheating Dogtic Ability Test Cheating provides that "the relevant test shall be invalidated for the Cheating discovered in the field during the test, and the Committee shall deliberate on the degree of sanctions according to the type of Cheating within one month from the date on which the sanctions are discovered and notify the results thereof." Article 7 provides that "the person who commits any of the following acts in the test shall be deemed to be the person who committed Cheating", and one of the Cheating is "the act of bringing in the test place prohibited goods and failing to submit them before

B. Determination

1) The subject matter of the determination

The plaintiff is seeking the revocation of the invalidation disposition of the College College Ability Test dated November 17, 2016 or November 28, 2016 by the defendant.

However, according to the relevant Acts and subordinate statutes, if a test site is discovered that a person did not submit a test site prior to the beginning of the test site after bringing in prohibited goods, the test is invalid, and the Committee shall deliberate on the degree of punishment according to the type of illegal act and notify the result of the test. If a fraudulent act is discovered during the test site, the test becomes invalid immediately, and thus, the Committee does not seem to decide whether to nullify the test. Therefore, the invalidity of a test for school ability of universities and colleges is immediately effective when the test is discovered by a supervisor, and the Committee has deliberated on the degree of sanctions on the premise of the discovered illegal act. Accordingly, the subject of the Plaintiff’s claim for revocation is the case where the Plaintiff submitted “Cheating” to the effect that the Plaintiff was a portable phone from the Plaintiff on November 17, 2016, and ② the Plaintiff’s request for a measure to hear a small noise from the supervisor and vibration on the part of the test.

2) Grounds for procedural illegality

On November 1, 2016, the Plaintiff asserts that the act of disclosure by a supervisor was unlawful as an infringing administrative disposition by giving prior notice or giving the opportunity to submit opinions.

Article 21 (4) 3 of the Administrative Procedures Act provides that "where there are reasonable grounds to believe that hearing opinions is significantly difficult or clearly unnecessary due to the nature of the relevant disposition," and Article 21 (4) 3 of the Administrative Procedures Act provides that "where no prior notice is given pursuant to paragraph (4), the administrative agency shall inform the parties, etc. of the grounds on which the notice is not given: Provided, That where prompt disposition is necessary, the administrative agency may inform the relevant parties, etc. of the grounds on which the prior notice is not given."

In addition, Article 22 (4) of the Administrative Procedures Act provides that "any case falling under any of the subparagraphs of Article 21 (4) shall be referred to in the case of not hearing opinions from the parties."

In addition, Article 23 (1) 3 of the Administrative Procedures Act provides that "Where it is necessary to take a disposition urgently" in cases where the relevant party does not present the grounds and reasons for the disposition, and the proviso of Article 24 (1) 2 of the same Act provides that "it is necessary to process the disposition promptly or where the case is minor, it may be done orally or by other means."

The Plaintiff brought in a portable telephone device, which is prohibited from bringing in the test site, and failed to submit it before the beginning of the test site, and was discovered to a supervisor. A supervisor entrusted with comprehensive supervision over the test site shall immediately detect the illegal act at the test site. In the event of the detection of illegal act at the test site, the relevant test becomes null and void immediately, and thus, prior notice and hearing of opinions may be omitted prior to the disposition, and the reasons for such illegal act may not be presented in writing at the time of the disposition. Therefore, even if the Defendant did not comply with certain procedures under the Administrative Procedures Act in detecting the Plaintiff’s illegal act, it is difficult to deem that there was procedural illegality in the process of the examination even if the Defendant failed to comply with the procedure under the Administrative Procedure Act (as seen in the rear, the Defendant informed the general matters on the date of the examination, the type of illegal act, and the procedures and sanctions for the detection of illegal act before the examination).

3) In addition to the statement in the evidence No. 5, considering the substantive reason for illegality in addition to the purport of the entire pleadings, the supervisor finds the instant telephone system through the metal detection device after the test was completed for a small amount of vibration of five times after the commencement of the 4th curriculum test, and the fact that the year 2017, which was publicly announced in October 2016, is included in the following matters.

2. On the date of the test, general attention is taken. Goods prohibited from bringing in the test room; the types of items that can be carried during the test, and all items other than those that can be carried out during the test, and the instructions of the supervisor shall be considered to be illegal if they are not complied with; and if they fail to comply with the instructions given by the supervisor, they shall be considered to be illegal; and if they fail to comply with the instructions given by the supervisor, they shall be considered to be illegal; (a) all electronic devices 6.9 illegal acts, such as visibility with telephone, communication function, or electronic screen display (LMD, etc.) which are prohibited from carrying in the test room; and (b) the supervisor does not submit them before the beginning of the test; and (c) the supervisor does not remove from the test room in compliance with the instructions of the supervisor; and (d) the person who has committed the illegal act to leave the test room in accordance with the instructions of the supervisor and guidance of the supervisor to take measures related to the illegal act; and (d) the person who has taken measures against the illegal act in accordance with the instructions of the supervisor.

2) In addition to the overall purport of pleadings Nos. 1 through 3-2 and evidence Nos. 3-1, the Plaintiff committed an act falling under any of subparagraphs 6 through 10 of the minor types of fraudulent act which is void only for the pertinent test based on the type of illegal act, and the overall purport of pleadings No. 1 through 3-2, and the video No. 3-1 of the evidence No. 3, the Plaintiff may recognize the following facts: (i) around October, 2016; (ii) around July 13, 2016, the Plaintiff did not use the instant phone; and (iii) at the time the instant phone was discovered on the date of the test, all of the instant phone was discovered at the time of the test

First, the Plaintiff asserts that the Plaintiff was found to have committed an illegal act after the completion of all the tests up to five times. Although the instant telephone machine was discovered after the completion of the test, the supervising officer was expected to investigate whether to carry the phone to the examinee in the test site due to the noise of vibration that occurred during the 4th test, but, in order not to have an impact on the test process of another examinee, it appears that the phone camera was found to have been discovered through the metal detection device after the completion of all the tests and before the examinee leaves the test. Therefore, it can be seen that the act was discovered during the test site.

In addition, the plaintiff did not recognize that the telephone period in this case was turned out and was in a bank, and if the College Ability Test which is given one opportunity once a year becomes null and void, it asserts that the disposition in this case was unlawful of deviation from and abuse of discretionary authority due to the excessive disadvantage suffered by the plaintiff as a result of the invalidation of the examination, such as delayed college admission, etc. However, Article 34(4) of the Higher Education Act provides that the examination of the person who committed an unlawful act in the examination should be invalidated, and thus, it is not possible to grant the defendant a discretionary discretion as to whether the disposition in this case was taken or whether it was taken or not, and thus, the plaintiff's assertion that the disposition in this case is unlawful is unlawful by abusing

In addition, the plaintiff asserts that the examination students who completed the 4th regular test among the examination students in the same examination place and taken the examination for the 5th regular test is invalid in violation of the principle of equality. However, the plaintiff's act of investigating only the examination students who completed the 5th regular test is prohibited from bringing a portable telephone device into the examination place, and as such, if the examination is not submitted to the supervisor, it is sufficiently known before the examination that the examination was conducted, it is difficult to view that the examination students who conducted the examination for the 5th regular examination and discovered the illegal act contrary to the principle of equality in the disposition of this case.

On the other hand, Article 7 subparagraph 9 of the Regulations on Handling of Cheaterstic Ability Test Cheating states that, without considering all specific and individual circumstances such as the developments and attitudes of bringing in, and the possibility of fraudulent acts, the plaintiff uniformly invalidated the relevant examination and thus, it violates the principle of proportionality.

However, the College Ability Test result is an important test that is utilized as a university entrance screening data, and it is difficult to expect that fraudulent act at a test site using electronic devices, etc. can be performed in any form due to the improvement of technical capabilities. In order to prevent such fraudulent act from being carried in the test site, and if such goods are brought in to the test site, the relevant test itself can be nullified to ensure the fair progress of the test (the legitimacy of the purpose and the appropriateness of the means). In addition, the defendant has given sufficient notice to the examinees prior to the examination about the sanctions to be incurred in the case of being brought in, so that the examinee does not suffer unexpected injury (the minimum infringement and the balance of legal interests). In full view of these circumstances, it is difficult to see that the instant disposition violates the principle of proportionality.

In addition, the Plaintiff asserts that Article 34 (4) of the Higher Education Act only provides that the goods prohibited for fair administration of the examination are prohibited, and that the scope of delegation is not limited in detail. However, there has been little social problems in the College Ability Test by using electronic devices, and that the portable telephone machine is included in the prohibited goods for bringing in the examination site, and it has been known through the examination subjects provided by the Defendant each year. In addition, under the circumstances where it is difficult to expect that fraudulent act using electronic devices such as portable telephone can be done in any form, it is practically impossible to specifically determine the prohibited goods for bringing in the examination site in the examination site in detail or to specify the scope thereof. Accordingly

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.