[부당이득금][하집1991(3),197]
Whether Article 8-2 of the Education Act that provides that compulsory education for secondary education shall be conducted in succession under the conditions as prescribed by the Presidential Decree is unconstitutional or not.
The right to receive free secondary education is not guaranteed as the constitutional right before the law provides that secondary education shall be implemented as compulsory education, but it is not guaranteed as the constitutional right before the State delegates the specific scope of implementation to the Presidential Decree, and it is difficult for the State to completely expand compulsory education for middle schools in terms of the current state financial situation, making decisions to provide compulsory education only to islands, remote areas and special schools and in other areas, with the opportunity to receive education in the first place is relatively unfavorable due to the geographical conditions or the characteristics of the trainee. This is reasonable discrimination, which is in line with the principle of substantial equality, rather than reasonable discrimination, and Article 8-2 of the Education Act provides that compulsory education for secondary education for three years shall be conducted in order under the conditions as prescribed by the Presidential Decree, and even if it is delegated to the Presidential Decree, it does not exceed the limit of delegated legislation. Thus, Article 8-2 of the Education Act does not violate Articles 11(1) and 3
Articles 8, 8-2, 11(1), and 31 of the Constitution of the Republic of Korea
Park Jong-cheon
Seoul Special Metropolitan City and one other
Seoul Central District Court 90 Ghana8680 decided
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the plaintiff.
The original judgment shall be revoked.
The Defendants jointly and severally pay to the Plaintiff the amount of KRW 1,00,000 and the amount equivalent to 25% per annum from the day following the service of the complaint of this case to the day of full payment.
Article 31 (1) of the Constitution provides that "All citizens shall have the right to receive equal education according to their abilities," while Article 8 (2) of the Education Act provides that "the above 1,00,00 won shall be paid to the defendant Seoul Special Metropolitan City through the above juncul middle school which is a public institution established and operated by the defendant 1 in order to ensure that the above 3 years of education and the above 3 years of education and the above 3 years of education and the above 3 years of education and the above 1,000 education and the above 3 years of education and the above 1,00 education and the above 3 years of education and the above 3 years of education and the above 3 years of education and the above 1,000 education and the above 1,000 education and the above 3 years of education and the above 1,000 education and the above 3,000 won of education and the above 3,000 won of education and the above 3,000 won of education shall be provided without compensation."
Therefore, first, since Article 31(2) of the Constitution provides that the primary education and the education stipulated by the law shall be conducted as compulsory education, the decision on which scope of education in addition to the primary education shall be delegated to the legislative person. The specific provisions on compulsory education, other than the primary education, can be enacted by the law, and setting the scope of compulsory education other than the primary education, belongs to the freedom of the legislative formation. Therefore, the problem of expanding compulsory education to be conducted free of charge is a matter that should be resolved by the legislative policy in consideration of the national financial situation and the income level of the people.
With respect to the scope of compulsory education, Article 31(3) of the Constitution, which provides for the free principle of compulsory education, can be deemed as the constitutional right that an individual can be exempted from entrance fees, etc. to the State as the direct effective provision of the same. However, in the case of secondary education, unlike the elementary education, Article 31(2) of the Constitution does not refer to the direct middle school education or high school education, but only to the education determined by law. Thus, the right to receive free secondary education is not guaranteed as the constitutional right before the National Assembly provides that the right to receive secondary education should be implemented as compulsory education. However, the right to receive free secondary education is not determined by law as the right to receive compulsory education at a certain level as the right to receive free education, and it is not the right to receive compulsory education at a certain level as the right to receive early education at a certain level under the Constitution, and it is not the right to receive free education at a certain level under the Constitution.
Therefore, even if the legislators have not yet been able to benefit from the free implementation of middle school land as they provide that compulsory education for middle school land is conducted in a phased manner, it is not guaranteed as a specific constitutional right at present for residents of that area, and their constitutional rights are violated by the state.
Second, the principle of equality under Article 11(1) of the Constitution does not mean any absolute equality that denies all discriminatory treatments, but rather means relative and substantial equality that makes it difficult for the State to discriminate against unreasonable conditions in the application or legislation of the law. Therefore, discrimination based on reasonable grounds cannot be deemed as contrary to the principle of equality. Therefore, the State’s decision to conduct compulsory education only for remote islands and special schools because it is impossible for the State to completely expand compulsory education for middle schools in its current financial standing and makes decisions to conduct compulsory education in consecutive order only for islands and special schools is relatively unreasonable due to the geographical conditions or characteristics of the trainee, which is a reasonable discrimination, and thus, this is more consistent with the principle of substantial equality. Accordingly, Article 8-2 of the Education Act does not violate the principle of equality under Article 11(1) of the Constitution.
Third, it is difficult to view that Article 31 (2) of the Constitution of the Republic of Korea provides for the detailed matters necessary for the implementation of compulsory education, excluding itself, the timing and scope of the implementation of compulsory education, etc., by the Act enacted by the National Assembly, and the above provision of the Constitution provides for the substantial meaning of the Act including the legislative order delegated by the Act of the National Assembly, so even if Article 8-2 of the Education Act provides for the phased extension of compulsory education and delegates the specific scope of its implementation to the Presidential Decree, it cannot be deemed that it goes against the Constitution beyond the limit of delegated legislation.
Therefore, the plaintiff's claim of this case, which is premised on the unconstitutionality of Article 8-2 of the Education Act, shall be dismissed without any reason to examine the plaintiff's claim of this case, and this conclusion is just and without any reason, and the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition.
Judges Lee Jin-hun (Presiding Judge)