대학의 자율성과 국립대학총장임용제도에서의 사법심사

Abstract

The object judgment is related to the system of appointment of the head of the university that had many controversial in the point of the conflict with the autonomy of university and appointment discretion of human resources manager for the last few years. The importance of the issue, especially the litigation, is about whether the secretary in the Minister of Education accepts the disposal of action to exclude or refuse the recommendation about the appointment of the first candidate recommended by universities or not. As the object judgment admitted the disposal of the action, a notion of the existing disposal was expanded. The case has a significance to expand the remedy on rights of the public. However, an approach of the object judgment is that the action of the secretary in the Ministry of Education was regarded as a simple disadvantage rather than the exclusion disposition about the application of the complainant by consisting of argument to admit the disposal of the action. The object judgment ignored the fact that the legal relation of candidates means competitive relation in the appointment of the head of the university as the unique legal principles. In addition, the nature of the recommendation about the appointment by the secretary in the Ministry of Education was not specified and suggested only the supplement or the necessity of the remedy on rights as the proof of the disposal. From the fact, the object judgment felt a sense of frustration to have a passive attitude in approaches to solving problems and making arguments, even though the object judgment admits the disposal of the action mentioned. On the other hand, the object judgment interpreted the obligation about reason proposal and the review of the merits on a limited basis and has an emphasis on the broad discretion of the appointee. From the discretion, the intensity of the examination on the main plan shows extreme mitigation of a burden that complainants defray the responsibility of proof in terms of deviance and abuses of the discretionary authority. However, the president selection and appointment system to appoint the head of the university who was agreed with the intention of members of the university in the laws of Education Public Officials and the decree on the Appointment of Education Public Officials is to guarantee a maximum of autonomy of universities as the fundamental rights as well as constitutional value based on Constitution Article 22 Paragraph 1, Constitution Article 31 Paragraph 4. Thus, as a court, the discretion of general public officials is different from the problem. The issues that can conflict with the right of the personal authority and the autonomy of universities need to set up the direction for ensuring the autonomy of the university in the intensity and the range of evaluation. According to it, at least, a process that leads to the members of the university and the top candidate shall be easily revealed in a nutshell rather than an exemption of reason proposal in case that the secretary in the Minister of Education appoints a second candidate. The object judgment provides internal criteria for examination of employment applications about the recommendation of appointment to the secretary in the Minister of Education and reduces the burden of the plaintiff's heavy responsibility. The court shall judge the rationality and the legal flaw. Plus, with further studies, the particular range and intensity of the examination for the judgement shall be provided gradually by considering the requirement and the social agreement on relevant values.