In a case where the president of Gap University, who entered Gap University Law School and was enrolled in the third year, notified of the revocation of passing the examination on the ground that he failed to obtain bachelor's degree, the case holding that the revocation of passing the examination was unlawful as it considerably deviates from and abused discretion, in violation of the principle of proportionality.

In a case where Party B notified Party B of the revocation of passing an examination based on Article 22 of the Act on the Establishment and Operation of Law Schools on the Establishment and Operation of Law Schools with respect to Party B who entered Party B and was enrolled in the third year, on the ground that Party B failed to obtain a bachelor’s degree, the Court held that Party B’s disposition to revoke the entrance examination by entering the law department of the University and the law department of the University and obtained an average level necessary for graduation credits and graduation in the major area, and that Party B did not submit a certificate of class 1 on the ground that Party B’s graduation was omitted due to the absence of the qualification for graduation in the foreign language area and the computer area, which is the criteria for recognition of incidental graduation, but submitted evidentiary documents and submitted them; Party B was treated as having graduated from the law school; Party B did not take any measures to notify that Party B did not have obtained a bachelor’s degree immediately after the entrance; Party B’s president did not take such measures as notifying Party B of the fact that Party B’s passing examination was more unlawful due to the violation of the principle of equity in operation and autonomy.

Articles 22 and 23 of the Act on the Establishment and Operation of Law Schools, Article 27 of the Administrative Litigation Act

Plaintiff (Attorney Kim Byung-jin et al., Counsel for the plaintiff-appellant)

President of Jeonnam University;

Gwangju District Court Decision 2014Guhap861 Decided August 21, 2014

April 2, 2015

1. Revocation of the first instance judgment.

2. The Defendant’s disposition of revoking passing the Plaintiff on March 21, 2014 is revoked.

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

The same shall apply to the order.

1. Basic facts

A. On February 26, 2010, the Plaintiff completed the course of law at the Jeonnam University and University, applied for a general master’s degree course at the law school at the Jeonnam University and entered the law school at the Jeonnam University (hereinafter “instant graduate school”) on February 11, 201, following the Defendant’s notice of passing through “Announcement of Successful Candidates with General 5 Additional General 5”)” (hereinafter “instant pass disposition”), and entered the law school at the Jeonnam University (hereinafter “instant graduate school”) on March 2, 2011.

B. On March 21, 2014, the Defendant notified the Plaintiff who was enrolled in the third grade of the instant graduate school on the ground that the Plaintiff fell short of the qualification for admission due to non-acquisition of bachelor’s degree (hereinafter “instant disposition to revoke passing”) based on Article 22 of the Act on the Establishment and Operation of Professional Law Schools (hereinafter “Legal School Act”).

C. Relevant statutes

It is as shown in the attached Form.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, Eul evidence 9, 14, and 15, and the purport of the whole pleadings

2. Judgment on the main defense of this case

A. The defendant's argument

The passing disposition of this case was based on the premise that the Plaintiff obtained a bachelor’s degree before the Plaintiff entered the above graduate school, and the passing disposition of this case is naturally null and void as it violates Articles 22 and 23 of the Law School Act. The Defendant notified the Plaintiff that the passing disposition of this case was null and void from the beginning, and thus, notification of the passing disposition of this case to the Plaintiff is merely notification of the concept that the passing disposition of this case was null and void, and thus, it cannot be subject to administrative litigation. Accordingly, the Plaintiff’s request is unlawful.

B. Determination

1) First, we examine whether the Defendant’s passing disposition of this case is legitimate and void.

A) Pursuant to Articles 22 and 23(1) of the Law School Act, only “a person who has a bachelor’s degree or who is recognized as having an equivalent or higher academic background pursuant to the law” can enter a professional law school. According to the above provisions, the 2011 year also requires that “a person who has obtained a bachelor’s degree (including a person who would have obtained a bachelor’s degree prior to March 1, 201) or is recognized as having an equivalent or higher academic background pursuant to the law” as an applicant for the recruitment of new students of the instant graduate school, there is no dispute between the parties, and according to the evidence No. 7, the Plaintiff is recognized as having obtained a bachelor’s degree on August 26, 2014, rather than at the time of entering the instant graduate school.

B) However, in full view of the above basic facts, Gap evidence Nos. 6, 11, 12, Eul evidence Nos. 3 through 6, 9, 11, and 21, the following facts can be acknowledged.

(1) Articles 58 and 59 of the former School Regulations (amended by Presidential Decree No. 2011, Feb. 25, 2011) provide that “In order to graduate, the average grade point of the whole subject shall be at least 1.75, and shall be recognized as a graduate qualification in the major, foreign language, and computer, and a bachelor’s degree shall be awarded by a certificate of graduation.” Article 57(2) of the former School Regulations (amended by Presidential Decree No. 2011, Feb. 25, 2011) provides that “A person who meets the conditions of recognition of a computer field shall submit to the head of the school department to which he/she belongs evidentiary documents necessary for graduation.”

On the other hand, the relevant provisions of the above school regulations and the school regulations were amended on February 25, 2011, and from new students in 2011, the computer area was excluded from the criteria for recognition as graduates.

(2) On March 3, 2003, the Plaintiff entered the department of law at the Jeonnam University and the department of law at the college of law, and completed the eight-year course in 2009, and acquired 151 credits exceeding the graduates (140 credits). The average of the years of transfer was 3.14. The applicant passed the English examination for recognition of the qualifications of graduation and met all the criteria for recognition of the qualifications of graduation in the major area and foreign language.

(3) On January 27, 2011, 201, the Korean University Law School held the first school guidance subcommittee and reported the result to the Defendant on February 9, 2011, following the fact that the Plaintiff met all the criteria for recognition of graduation in the area other than the computer area, but failed to meet the requirements for recognition of graduation in the computer area.

(4) However, on February 4, 2011, the Plaintiff acquired a class-1 certificate of a class-II, thereby meeting the standards for recognition of graduation qualifications in computer areas, but did not submit them to the head of the department as a site for administrative procedures.

(5) On May 31, 201, the Defendant issued a prior notice of revocation of passing the examination to the Plaintiff on February 27, 2014, to the effect that the Plaintiff would have to obtain bachelor’s degrees pursuant to Articles 23 and 24 of the Administrative Procedures Act, prior to the revocation of passing the examination, and that the Plaintiff would have to obtain bachelor’s degrees, and did not take any further measures, even though having confirmed that the Plaintiff had completed the law course of the law course at the Jeonnam University, and did not have obtained a bachelor’s degrees. On March 21, 2014, the Defendant issued an administrative appeal against the disposition authority within 180 days from the date on which the instant disposition was revoked, and notified the pertinent disposition to the competent court within 90 days from the date on which the instant disposition became known, and within 180 days from the date on which the aforementioned disposition was issued.”

(6) On February 27, 2014, the Plaintiff was treated as having graduated from the above law school on August 26, 2014 by submitting evidentiary documents on the computer area with the knowledge that the Plaintiff did not obtain a bachelor’s degree through prior notice of the Defendant’s revocation of passing.

(7) In 2011, the recruitment outline for new students of the graduate school of this case included “person who would have obtained bachelor’s degree prior to March 1, 201,” and recognized the qualification for admission. As such, the Plaintiff was not only at the time the Defendant issued the instant pass disposition but at least had the qualification for admission pursuant to the above recruitment outline until March 1, 201, and thus, the instant pass disposition did not adversely affect the other applicants who applied for the recruitment recruitment with new students at the time of the instant pass disposition, such as deprivation of the opportunity for pass.

C) As seen above, the Plaintiff: (a) regularly admitted to a domestic university, and practically satisfied the criteria for recognition of graduation qualifications by taking an examination according to the school regulations and taking credits; (b) however, in light of all the circumstances, the Plaintiff already acquired qualifications in the computer area, which is merely the criteria for recognition of additional graduation qualifications, and submitted evidentiary documents, and omitted from the graduation; and (c) on May 31, 201, the Defendant did not take any particular measure despite having been notified that the Plaintiff, who passed the examination as a person entitled to obtain bachelor’s degree at the time, was not subject to a bachelor’s degree until the time when he/she had obtained a bachelor’s degree; (b) the Plaintiff notified the revocation of the instant pass disposition with respect to the Plaintiff who completed the three-year course at the time after the lapse of 2 years and 10 months thereafter; and (c) prior to notifying the Defendant of the revocation of the above pass disposition, it is clear that the defect in the instant disposition was significant and objective to the extent that it has passed the disposition.

2) Therefore, the above argument that the defendant's above notification is merely a notification of concept on the premise that the passing disposition of this case is null and void as a matter of course is without merit.

3. Whether the disposition to revoke the passing of this case is legitimate

A. Non-existence of grounds for disposition and determination thereof

1) On February 4, 2011, the Plaintiff asserts that the instant disposition to revoke passing the instant disposition is unlawful on the grounds that: (a) around February 4, 2011, the Plaintiff satisfied all the criteria for recognition of graduates from the Department of Law at Jeonnam University; and (b) the Plaintiff’s failure to submit documentary evidence in the computer area among the criteria for recognition of graduates’ qualifications does not constitute a ground for revocation.

In light of the facts alleged by the Plaintiff, the Plaintiff’s passing disposition of this case and the passing disposition of this case are based on the premise that the Plaintiff would obtain a bachelor’s degree before entering the graduate school of this case. The Plaintiff did not obtain a bachelor’s degree before entering the graduate school of this case and obtained a bachelor’s degree on August 26, 2014. The Plaintiff’s passing disposition of this case cannot be deemed to be the same as the Plaintiff obtained a bachelor’s degree at the time of the passing disposition of this case and the passing disposition of this case, considering the equity and the importance of fair and objective selection among applicants in the admission circumstances.

B. Grounds for deviation from and abuse of discretionary power and determination thereof

1) Summary of the Plaintiff’s assertion

A) The disposition to revoke the passing of the instant case is more serious than the purpose to achieve through the disposition, and thus, it is unlawful as it violates the principle of proportionality.

B) On May 31, 201, the Defendant confirmed that the Plaintiff completed only the department of law at Jeonnam University, and did not graduate, and did not take any measures to close up to 2 years and 10 months thereafter. However, the Defendant’s disposition to revoke the passing of the instant case on the ground that the Plaintiff had not been aware of the fact that the Plaintiff had completed the department of law at Jeonnam University, and did not take any measures to revoke the passing of the instant case on the ground that the Plaintiff had not been aware of the fact.

2) Determination

A) If there is a defect in an administrative act, i.e., if it is illegal or unjust, it may be revoked in principle. However, even if there is a cause for revocation, it may be revoked at any time, not at any time, but at the point of view of protecting the legal order of flag, and where the contents of an administrative disposition impose a certain obligation or burden on the citizens, or restrict, suspend, or deprives the citizens of their rights and freedom, such revocation is the sole interest of the citizens, and the administrative agency can freely revoke it. On the other hand, in a case where an administrative disposition that imposes an benefit such as recovering from the obligation of the citizens, restoring the freedom, or granting the rights and interests of the people, it results in the deprivation of the rights and interests of the people, or restricting the freedom of acquisition. Accordingly, in the case of revocation of such administrative disposition, it may be revoked only if it is necessary for the important public interest to justify such infringement of the rights and interests of the people, or if it is not unlawful to revoke such restriction, it is not unlawful to revoke it (see, e.g., Supreme Court Decision 197Nu7.

B) In full view of the following facts and circumstances as to this case’s health team, the above recognition facts, and evidence Nos. 9-1 through 4, 7, and 8, the following facts and circumstances revealed by the statements in the evidence Nos. 9-1 through 4, 7, and 8, the Plaintiff’s legal interest infringed by the above disposition is much more serious than that of the public interest, such as equity in admission examinations for graduate schools realized by the revocation of the passing disposition of this case, fair operation of the admission system for graduate schools, autonomy of graduate schools, etc.

① On March 3, 2003, the Plaintiff was regularly admitted to the Department of Law at Jeonnam University, and acquired an average point necessary for graduation and graduation in accordance with school regulations in the major field, and was fully satisfied both the foreign language area and the computer area, which is the criteria for recognition as incidental graduation, but was omitted in the course of graduation by failing to submit a class 1 certificate of qualification already acquired qualification. After the filing of the instant lawsuit, the Plaintiff was treated as having graduated from the said Department of Law on August 26, 2014 by submitting the relevant documentary evidence related to the computer area at the latest.

② On May 31, 2011, the Defendant did not take any measures despite having been notified that the Plaintiff had not obtained a bachelor’s degree. Accordingly, the Plaintiff entered the bar examination at the graduate school of the instant case for a period of three years prior to the revocation of the passing of the instant case, and paid the Plaintiff KRW 36,614,00 in total by up to one semester.

③ However, around February 2014, the Defendant issued a prior notice of the revocation of the Plaintiff’s bachelor’s degree as of February 27, 2014, and notified the revocation of the passing on March 21, 2014. Accordingly, the Plaintiff was deprived of the Plaintiff’s status as the third grade of the graduate school of this case.

④ The instant case is merely a case where the applicant committed an unlawful act, such as forging evidentiary documents regarding the eligibility for admission, or where an education and evaluation for acquiring bachelor’s degrees was conducted in violation of the school regulations of the university from which the applicant was enrolled, and the applicant failed to submit evidentiary documents (in addition, the computer area that became disqualified for the Plaintiff’s graduation was excluded from the criteria for the qualification for graduation from the new students of the Jeonnam University in 201). The Plaintiff’s completion of the term is still remaining one semester.

3) Therefore, the Defendant’s disposition to revoke the passing of the instant case ought to be revoked as it is unlawful without further review.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the ground of its reasoning, and the judgment of the first instance is unfair, so the judgment of the first instance shall be accepted, and the decision shall be revoked and the decision shall be revoked. It is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Park Byung-il (Presiding Judge)