2005Da22671 Confirmation of Invalidity of Revocation of Award of Master’s Degree

Justices Park Si-hwan(Presiding Justice), Park Ill-hoan, Kim Nung-hwan(Justice in charge)

Main Issues

1. The elements for admissions qualification to the master’s degree program at a graduate school as to an applicant who is acknowledged by the statute to have received education that is the same as or higher under Article 33 (2) of the Higher Education Act, and the subject authorized to give an acknowledgment of admissions qualification (= the subject graduate school)
2. The validity of an act of awarding a master's degree to an applicant who is not qualified to enter the master's degree program of the graduate school (=null and void) and whether the principle of good faith or the principle of trust applies to the case where the award of a master's degree is revoked (negative)

Summary of Decision

1. If a "person who is acknowledged by the statute to have received education that is the same as or higher than the above, " as stipulated in Article 33 (2) of the Higher Education Act, were to be approved to join a master's degree course at a graduate school, he must have completed an educational course in a foreign country or in the northern part above of the military demarcation line, which corresponds to the primary, secondary and college education of Korea, and must be acknowledged to have received the same level of education as a college graduate, and the above acknowledgment of admission qualification shall be granted by the subject graduate school in principle.
2. In the case of a person who is not qualified to be admitted to a master's degree course at a graduate school according to Article 33 (2) of the Higher Education Act, even if he received a master's degree after completing the course as determined in the school regulations, the above master's degree shall be null and void, and the cancellation of such null and void act on the part of the graduate school is nothing more than a notice to the person that the award of a master's degree was null and void from the beginning, therefore, the principle of good faith or the principle of trust shall not apply to such case.

Reference Provisions

1. Article 33(2) of the Higher Education Act, Article 70(2) of the Enforcement Decree of the Higher Education Act
2. Article 2 of the Civil Act, Article 33(2) of the Higher Education Act

Article 33 of the Higher Education Act (Qualifications for Admission)

(2) Those who hold bachelor's degree or those who have been recognized as having equivalent or higher academic background under Acts and subordinate statutes shall be qualified to enter master's degree courses and combined courses for master's degree and doctor's degree.

Article 70 (2) of the Enforcement Decree of the Higher Education Act

(2) A person who completed an educational course in a foreign country or in an area north of the military demarcation line, which corresponds to the primary, secondary and college education of Korea, and who is acknowledged to have received the same level of education as a college graduate, shall be deem to have the same education level as a person who has graduated from college.

Article 2 of the Civil Act (Trust and Good Faith)

(1) The exercise of rights and the performance of duties shall be in accordance with the principle of trust and good faith.

(2) No abuse of rights shall be permitted.

Reference Case

[2] Supreme Court Decision 87Daka131 delivered on April 11, 1989(Gong 1989, 728)

• Plaintiff, Appellee: Plaintiff and 3 others (Attorneys Choi Young-sik and et al., Counsel for plaintff-appellee)

• Defendant, Appellant: Educational Corporation, Kook-min (Attorneys Kee Sung-hwan and et al. Counsel for defendant-appellant)

• Judgment of the court below: Seoul High Court Decision 2004Na 58583 delivered on March 30, 2005

Disposition

The decision of the court below is reversed and the case is remanded to Seoul High Court.

Reasoning

This is to examine the Grounds for Appeal.

1. Article 33 (2) of the former Higher Education Act (amended as Act Number 6400 of January 29, 2001, hereinafter referred to as the "Higher Education Act") stipulates that "a person who shall enter a master's degree course at a graduate school shall have a bachelor's degree or shall be a person who is acknowledged by the statute to have received education that is the same as or higher than the above degree," and Article 70 (2) of the former Enforcement Decree of the Higher Education Act (amended as Presidential Decree Number 17008 of November 28, 2000, hereinafter referred to as the "Enforcement Decree") stipulates that "a person who completed an educational course in a foreign country or in the northern part of the military demarcation line, which corresponds to the primary, secondary and college education of Korea, and who is acknowledged to have received the same level of education as a college graduate, shall be deem to have the same education level as the person who has graduated from college," therefore, if a "person who is acknowledged by the statute to have received education that is the same as or higher," as stipulated in Article 33 (2) of the Higher Education Act, were to be approved to join a master's degree course at a graduate school, he must have completed an educational course in a foreign country or in an area north of the military demarcation line, which corresponds to the primary, secondary and college education of Korea, and must be acknowledged to have received the same level of education as a college graduate, and the above acknowledgment of admission qualification shall be granted by the subject graduate school in principle.

Meanwhile, in the case of a person who is not qualified to be admitted to a master's degree course at a graduate school under Article 33 (2) of the Higher Education Act, even if he received a master's degree after completing the course in accordance with the school regulations, the above master's degree shall be null and void, and the cancellation of the null and void act on the part of the school is nothing more than a notice to the person that the award of a master's degree was null and void from the beginning, therefore, the principle of good faith or the principle of trust shall not apply in this case (refer to Supreme Court Decision 87DaKa131 Delivered on April 11, 1989).

2. According to the Record and the Grounds for the decision of the court below, the Graduate School of Political Science at Kookmin University which belongs to the defendant (hereinafter referred to as the "Graduate School of Political Science") went through the document check and interviews to tentatively admit the plaintiffs to its master's degree course, on condition that the admission shall be canceled if there would be no reply as to a request to check their educational backgrounds that would later be made to the University of Lagos; The Graduate School of Political Science called the University of Lagos and confirmed whether the plaintiffs had received bachelor's degrees, and received a public document from the University of Lagos on September 3, 1999 that the plaintiffs had completed the bachelor's degree course at the remote education center of the University of Lagos; The Nigerian Embassy in Korea certified on September 13, 1999 that the plaintiffs' certificates of graduation and transcripts had been issued by the University of Lagos, and the plaintiffs submitted the above documents to the Graduate School of Political Science at around the same time; The plaintiffs were provided with study materials by Kim Kwang-soo who is the vice president of the Korean office of the remote education center of the University of Lagos, and completed the course by submitting reports, all of which were conducted in Korea; The University of Lagos Council convened a special meeting on November 21, 2001 to review the program of the Korean office of the remote education center and declared that all of the graduation certificates and degrees that had been given to Korean graduates including the plaintiffs shall be null and void, for the following reasons: the program of the Korean office did not follow certain procedures for applicants to be admitted to receive degrees from the University of Lagos; Nor did the University of Lagos Council appoint testers, it neither reviewed the results of the tests administered in Korea in the name of the University of Lagos, and; The University of Lagos Council had never delegated its authority to give degrees to the Korean students who attended the remote education center. The University of Lagos notified the Korean Embassy in Nigeria on May 3, 2002 of the above declaration by the University of Lagos Council, then the Korean Embassy in Nigeria notified the Korean Ministry of Education and Human Resources of the above fact, and then the Korean Ministry of Education and Human Resources notified the defendant of the above on around June 29, 2002.

Under the above circumstances, the Graduate School of Political Science recognized that the plaintiffs were qualified to be admitted to the master's degree course at the Graduate School in accordance with Article 33 (2) of the Higher Education Act and Article 70 (2) of the Enforcement Decree on the premise that University of Lagos acknowledged their bachelor's degrees were valid, but as long as the University of Lagos declared that the bachelor's degrees, the basis on which an admission decision was made, were null and void, the plaintiffs shall not be deemed as qualified to be admitted to the master’s degree course under the Higher Education Act and the Enforcement Decree, therefore the master's degrees given to the plaintiffs is null and void, and for the defendant to cancel the award of the master's degree, which was a null and void act, shall not be deemed as against the principle of protection of trust.

Nevertheless, the court below, under the circumstances stated in its opinion, decided that the plaintiffs' bachelor's degrees were valid, and that the defendant went against the principle of protection of trust by revoking the master's degrees, which was illegal and invalid. This judgment is erroneous in the misapplication of legal principles as to the violation of the Higher Education Act and the principle of protection of trust, which must have affected the conclusion of judgment below.

3. Therefore, without examining the remaining Grounds for Appeal, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination, and this decision is delivered with the assent of all Justices who reviewed the appeal.

Source

• Supreme Court Decision 2005Da22671 Delivered on July 27, 2007, Supreme Court Library of Korea