Article 7(1) of the Regulations on the Establishment and Operation of Universities and Colleges; Article 2 of the Addenda (Amended by Presidential Decree No. 29127, Jul. 24, 2015); Article 49 of the Administrative Appeals Act; Articles 3(1), 41(1) and (4), 44, and 45(1) of the Administrative Procedures Act; Article 23 of the Enforcement Decree of the Administrative Procedures Act; Article 14(1) and (3), 18, 19(2) (see current Article 19) of the former Regulations on the Operation of Legislative Services (Amended by Presidential Decree No. 29127, Aug. 28, 2018)

School Foundation Dental Institute (Attorney Park Jin-hoon et al., Counsel for the defendant-appellant)

(2) The Minister of Education (Attorney Hong-min, Counsel for the plaintiff-appellant)

August 29, 2018

1. The defendant's rejection disposition against the plaintiff on June 13, 2016 against the plaintiff is revoked.

2. The costs of the lawsuit are assessed against the defendant.

Article 7 (1) of the former Regulations on the Establishment and Operation of Universities (amended by Presidential Decree No. 26430, Jul. 24, 2015) and Article 2 of the Addenda to the Regulations on the Establishment and Operation of Universities (amended by Presidential Decree No. 26430, Jul. 24, 2015) are in violation

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is a school foundation that establishes and operates the Gangwon Tourism University (title prior to the change: Taesung University) and the Jinjin Middle School, and applied for authorization to amend the articles of incorporation to the Defendant to establish and operate the Seocheon University (title prior to the change: distribution information junior college), which is a junior college, in Seo-gu Incheon, Seo-gu, Incheon. On June 30, 1998, the Defendant authorized the Plaintiff to amend the articles of incorporation to add Seocheon University to the schools established and operated by the Plaintiff under the conditions such as teacher, school site, teacher, and basic property for profit-making.

B. On February 27, 2013, the Plaintiff filed an application with the Defendant for authorization to establish the Seocheon University on March 1, 2014. The Defendant rejected the Plaintiff’s application for authorization on the ground that “i) specialization in the operation of departments and curriculum, ② need for restructuring due to the decline in school age, ③ additional school foundation in the same school foundation is expected to have difficulty in providing high-quality education due to the diversification of school operation capacity.” Accordingly, the Plaintiff filed an administrative appeal against the Defendant seeking revocation of the above rejection disposition with the Central Administrative Appeals Commission. The Central Administrative Appeals Commission, on July 1, 2014, stated that the Plaintiff’s application for authorization on the above rejection disposition, which was based on Article 3 of the Addenda to the Establishment and Operation of the University (amended by Presidential Decree No. 1905, Oct. 25, 2005) was unreasonable, considering that it is difficult to ensure that the Plaintiff’s application of the above rejection disposition, which was based on the previous provision, was made more on the grounds for revocation of the Plaintiff’s application of the above rejection disposition.

C. Accordingly, on August 13, 2014, the Plaintiff filed a re-application with the Defendant for the authorization of the establishment of the Seocheon University as of March 1, 2015. However, on October 6, 2014, the Defendant again rejected the Plaintiff’s application for the authorization on the ground that it is impossible in the examination committee for the establishment of the university on March 1, 2015, by not later than five months prior to the scheduled opening date (as of March 1, 2015) (as of September 30, 2014) in accordance with the former Enforcement Rule of the Regulations on the Establishment and Operation of the University (amended by Ordinance of the Ministry of Education Ordinance No. 26, Feb. 24, 2014).

D. On February 26, 2015, the Plaintiff filed an application again for authorization to establish the Seocheon University on March 1, 2016 with the scheduled date for opening the school. On August 13, 2015, the Defendant requested the Plaintiff to supplement the “plan to build computer servers (such as school affairs information systems), security equipment, plans to purchase student physical training rooms, plans to improve student school conditions, plans to install school facilities, convenience facilities for disabled persons (elevators, etc.)” on August 18, 2015, and the Plaintiff filed an application again with the Defendant for authorization to establish the Seocheon University on September 24, 2015, on the ground that “the plan to supplement facilities and equipment for opening the Seocheon University University,” which is “the plan to establish the above 70 billion won for establishment of the University,” and that “the Plaintiff failed to meet the standards for authorization to establish the university’s basic property on September 14, 2015 (Article 700 million won).”

E. On February 26, 2016, the Plaintiff filed an application with the Defendant for re-approval of the establishment of the Seocheon University on March 1, 2017 with the scheduled date of opening the university. However, on June 13, 2016, the Defendant again rejected the said application for authorization against the Plaintiff on the following grounds (hereinafter “instant rejection disposition”).

As a result of deliberation on authorization for establishment of the Seocheon University, which is included in the main sentence: 1. Reasons for rejection (in response): The provisions on the establishment and operation of the university were amended by Presidential Decree No. 26430 on July 24, 2015, and thus, the criteria for securing basic property for profit-making purposes were modified, and thus, it was not secured even though it was not secured, and the return rate standard was not satisfied. Whether the criteria for classification are satisfied or not. The amount of basic property for profit-making purposes 27.95 billion won x 15.29 billion won x 3.5% x 2.6% x 1.5% x 1.6% x

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 13, Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

1) Unless there exist special circumstances, the Defendant shall authorize the establishment of the Plaintiff’s Seocheon University, based on the binding force of the ruling on July 1, 2014. Nevertheless, the Defendant revised the regulations on the establishment and operation of the university on July 24, 2015 to raise the criteria for securing fundamental property for profit-making purposes and made the instant disposition of refusal on the ground thereof. This contradicts the binding force of the said ruling (hereinafter “instant recommendation”).

2) As a result of applying the “20 billion won” under Article 7(1)2 of the former Regulations on the Establishment and Operation of Universities and Colleges (amended by Presidential Decree No. 26430, Jul. 24, 2015; hereinafter “amended Regulations”), the Defendant issued the instant disposition of refusal on the ground that the Plaintiff failed to meet the minimum standard of fundamental property for profit-making purposes. However, the above amended provisions are illegal as they are defective in the pre-announcement procedure, and thus, the instant disposition of refusal based on such error is unlawful (hereinafter “instant disposition”).

3) A series of applications filed by the Plaintiff to the Defendant from February 27, 2013 to February 26, 2016 for authorization for the establishment of the Seocheon University ought to be deemed one application for authorization made for the establishment of the Seocheon University. Since the amendment was made by the revised provision while delaying the handling of the Plaintiff’s above application for authorization without justifiable grounds, even if the amended provision is lawful and valid, Article 7(1)2 of the amended provision is not applicable to the Plaintiff. Therefore, the instant refusal disposition based on Article 7(1)2 of the amended provision is unlawful (hereinafter “instant Chapter”).

4) The Plaintiff’s private interest is infringed upon by the Plaintiff’s establishment of Seocho-do University by inserting about 38 billion won and time due to the instant refusal disposition, and the public interest is unclear to achieve the instant refusal disposition. Thus, the instant refusal disposition is illegal to deviate from and abuse the discretionary power (hereinafter “instant disposition”).

5) After a ruling on July 1, 2014 was rendered by the Defendant, the Defendant issued a specific and detailed instruction to the Plaintiff on the premise of the re-receiving order and opening of the application for the authorization of the establishment of the Seocheon University as an official statement. Since the Plaintiff confirmed that the Defendant’s refusal disposition was illegal through a ruling on July 1, 2014, the Defendant’s above statement of opinion was justifiable, the Plaintiff did not have any cause attributable to the Plaintiff. The Plaintiff paid enormous expenses in accordance with the Defendant’s instruction, thereby securing the school site, teachers, basic property for profit, etc., and securing detailed facilities. Nevertheless, the Defendant infringed the Plaintiff’s interest by rendering the instant refusal disposition against the above statement of opinion against the above statement of opinion, and thus, the instant refusal disposition is unlawful in violation of the principle of trust protection (hereinafter “instant Chapter 5”).

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the ground of appeal No. 1

The grounds for the defendant's rejection disposition as of December 6, 2013 and the grounds for the rejection disposition as of this case are not identical to their basic facts. Thus, even if the defendant's rejection disposition as of December 6, 2013 was revoked by the ruling of December 6, 2013, the defendant's rejection disposition as of this case does not conflict with the binding force of the ruling of December 9, 2005 (see Supreme Court Decision 2003Du7705, Dec. 9, 2005). Therefore, this part of the plaintiff's assertion is without merit.

2) As to the instant claim (2)

A) Whether the amended provisions are unlawful or invalid

(1) Statutes and legal principles on administrative pre-announcement of legislation

Except as otherwise expressly provided for in other Acts, Article 3(1) of the Administrative Procedures Act provides that an institution proposing a legislative Bill shall comply with the provisions of the Administrative Procedures Act. Article 41(1) of the same Act provides that where an institution proposing a legislative Bill intends to enact, amend, or repeal (hereinafter referred to as the "legislation"), the relevant administrative agency shall pre-announce the legislation: Provided, That where an urgent need arises for the legislation due to exceptional circumstances that make it difficult to protect the rights of the people or forecast the legislation ( subparagraph 1) or where the legislative contents are not related to the rights and obligations of the people or daily lives of the people ( subparagraph 3), the head of the relevant administrative agency may pre-announce the legislation by examining the legislative contents of the Bill to reflect the opinion of the public, and if an opinion of the Ministry of Government Legislation is deemed unnecessary or difficult due to the nature of the legislation, Article 41(4) of the same Act provides that such pre-announcement shall be included in the pre-announcement of legislation;

As above, the Administrative Procedures Act and its subordinate statutes require an administrative agency that has prepared the administrative legislation bill to pre-announce the legislation, and shall respect and notify the results of the legislation when it receives the opinion from the public, except in extenuating circumstances, and shall recommend the Minister of Government Legislation to reflect the opinion in the legislative bill in the case of an important opinion among the opinions not reflected in the legislative bill. The purport of the provision is to reasonably adjust the interests of the majority interested parties so that the public’s will is reflected in the process in order to prevent unfair infringement on the rights of the public and to ensure democratization and trust in administration. Accordingly, in the event that the legislation was made in violation of the administrative pre-announcement procedure prescribed in the Administrative Procedures Act and its

(2) Facts of recognition

(A) On February 6, 2014, the Defendant issued a pre-announcement of the partial amendment of the Regulations on the Establishment and Operation of Universities by the Ministry of Education No. 2014-37, and the main contents thereof are as follows (hereinafter referred to as “the Addenda to the Amendment”).

1. Table 1. The main contents of this Decree are to restrain the establishment of a university to reduce the number of students emerging due to the decline in the number of students, etc., and to strengthen the requirements for authorization to establish a university to prevent the establishment of a private school of poor financial standing; (a) to enhance the examination by taking into account national educational policies, academic population, demand for social human resources, etc. at the time of deliberation by the National Educational Foundation Establishment Examination Committee (Article 3) to establish regulations on the establishment of a university; (b) to increase the minimum standard for profit-making basic property (Article 7) to increase the standards for establishment and operation of a university or to prevent the occurrence of a private school of poor financial standing; and (c) to establish and operate a school juristic person in accordance with Article 2(1)1 of the previous Decree on the Establishment and Operation of a university; and (d) to establish and operate a new school juristic person in accordance with Article 3(1)1 of the same Decree, Article 2(1) through (2) of the previous Decree on the Establishment and Operation of a university; and to establish a new school juristic person as follows:

(B) After that, the provisions on the establishment and operation of universities were amended on July 24, 2015 as follows. However, even though Article 2 of the Addenda (the transitional provisions on the change of the basic property for profit) of the Act on the Aggravated Punishment, which is the transitional provisions on the change of the standards for basic property for profit, has changed to the contents different from Article 3 of the Addenda of the Act on the Aggravated Punishment, the Defendant did not re-

Article 7 (Basic Property for Earnings) (1) of the table included in the main sentence (1) of the Act on the Management of Public Institutions shall secure basic property for profits equivalent to the total annual operating revenues of the school accounting of a university, and shall secure at least the amount prescribed in the following subparagraphs: Provided, That where the State (including a public institution under Article 4 of the Act on the Management of Public Institutions) supports at least 2.8 percent of the annual operating earnings of the school accounting of a university to a university established and managed by the State, the relevant school foundation shall be deemed to secure basic property for profits.

(C) The Defendant rendered the instant disposition of refusal on the ground that the Plaintiff failed to meet its requirements by applying Article 7(1)2 of the amended provision to the Plaintiff’s application for authorization for the establishment of a university on February 26, 2016, which was made after the enforcement of the amended provision pursuant to Article 2 of the Addenda to the amended provision.

[Reasons for Recognition] Uncontentious Facts, Entry of Evidence A No. 16, the purport of the whole pleadings

(3) Determination

With respect to the scope of application of Article 7(1) of the amended Regulations, Article 3 of the Addenda to the amended Regulations provides that the previous provisions (amended by Presidential Decree No. 26430, Jul. 24, 2015; hereinafter the same shall apply) shall apply to the basic property for profit of school juristic persons already established at the time of the enforcement of the amended Regulations, while Article 2 of the Addenda to the amended Regulations shall apply only to the basic property for profit in cases of universities established prior to the enforcement of the amended provisions, and where applying for authorization of establishment of universities prior to the enforcement of the amended provisions, Article 3 of the Addenda to the amended Regulations shall apply only to the basic property for profit in cases of applying for authorization of establishment of universities prior to the enforcement of the amended provisions. Article 7(1) of the amended Regulations shall be deemed to have substantially changed beyond the level of simple expression and wording after the pre-announcement of legislation. The issue of the scope of application of Article 7(1) of the amended Regulations shall directly affect the obligation of school juristic persons to secure basic property for profit and shall have a very significant interest in this regard (Article 7(the amendment shall be applied to the minimum provision of the amendment.

If so, after the Defendant’s pre-announcement of legislation on Article 3 of the Addenda to the Amendment, the contents directly related to the rights and obligations of the citizens were added to the pre-announcement of legislation, or there was a need to gather opinions again due to a change in the main contents of the Bill, etc. Therefore, the Defendant should have again issued a pre-announcement of legislation on Article 2 of the Addenda to the Amendment in accordance with the main text of Article 41(4) of the Administrative Procedures Act and Article 14(3) of the former Regulations on the Operation of Legislative Affairs. However, since the Defendant did not re-announce such pre-announcement of legislation, Article 2 of the Addenda to the Amendment is in violation of the above Administrative Procedures Act and null and void. Furthermore, Article 2 of the Addenda to the Amendment is a transitional provision that sets forth the scope of application of Article 7(1) of the amended Regulations, and both are in an indivisible relationship (Article 7(1) of the Addenda to the Amendment becomes null and void when Article 2 of the Addenda to the Amendment becomes null and void.

B) Whether the instant refusal disposition is unlawful

As seen earlier, the Defendant issued the instant refusal disposition against the Plaintiff based on Article 7 (1) 2 of the invalid amendment provision and Article 2 of the Addenda to the amended provision. As such, the instant refusal disposition is also revoked in an unlawful manner. The Plaintiff’s assertion pointing this out is with merit.

3) As to the instant claim (3)

The Plaintiff filed an application for university establishment authorization with the Defendant as of March 1, 2013 for the establishment of the Seocheon University as of March 1, 2014; the university establishment authorization as of August 13, 2014; the university establishment authorization as of March 1, 2015; the university establishment authorization as of February 26, 2015 as of March 1, 2016; and the university establishment authorization as of February 26, 2016 as of March 26, 2017 as of March 1, 2017; and each application for university establishment authorization as of February 26, 2016, as of March 1, 2017; and the Defendant’s examination as to whether each of the above applications for authorization satisfies the requirements for establishment as of March 1, 2017. Accordingly, each of the above applications for authorization filed against the Defendant is without merit under the premise that each of the above applications for authorization was concluded before the Defendant’s each of the above applications for authorization was made.

4) As to the instant claim

The plaintiff's assertion in this part is based on the premise that Article 7 (1) 2 of the amended Regulation is a valid norm, and the above provision is invalid as seen in the above 2). Therefore, the plaintiff's assertion in this part is not examined separately.

5) As to the instant claim 5

The statements in Gap evidence Nos. 1, 6, 7, and 10 through 20 and testimony of the non-party witness alone are insufficient to recognize that the defendant made an official statement to the plaintiff that the defendant would authorize the plaintiff to apply for authorization of the establishment of the Seocheon University. There is no other evidence to recognize otherwise. As the plaintiff's assertion, even if the defendant made a specific and detailed instruction to the plaintiff on the premise of the re-receiving order and opening of the application for authorization of the establishment of the Seocheon University, it is merely an administrative guidance given to the plaintiff to meet the requirements for the establishment of the university. Accordingly, the plaintiff's assertion on the other premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Park Jong-jin (Presiding Justice)