Inasmuch as Article 3-3(1) [Attachment 2] of the Enforcement Decree of the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons (hereinafter “Enforcement Decree of the Private Teaching Institutes”), the proviso on “a dance institute business under the Installation and Utilization of Sports Facilities Act” (hereinafter “the proviso on the scope of dance institutes”) concerning dances belonging to the curriculum of a private teaching institute for lifelong education or vocational training (hereinafter “the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act”) can be construed as excluding the application of the Act on the Establishment and Utilization of Sports Facilities (hereinafter “sports Facilities Act”), if it is interpreted as a provision on the exclusion of the application of the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons (hereinafter “private teaching Institutes Act”), it cannot be construed as a provision on the restriction on the establishment and operation of private teaching institutes under Article 3-3(1) [Attachment 2] of the Enforcement Decree of the Sports Facilities Act, or a provision on the establishment and operation of private teaching institutes for lifelong education or vocational training under the Sports Facilities Act that allows persons to register under the Private Institutes Act.

In light of the need to avoid the legal confusion and instability that may arise when a norm is declared null and void, and the harm caused by the legal gap until a new norm is enacted, in a case where it is unclear whether the provisions of subordinate statutes conflict with those of superior laws and subordinate statutes, and where it is possible to interpret the meaning of subordinate Acts and subordinate statutes as consistent with superior laws and subordinate statutes by comprehensively examining the contents, legislative purport and history of the relevant Acts and subordinate statutes, it is not easy to declare invalidation on the ground that subordinate Acts and subordinate statutes are in violation of superior laws and subordinate statutes. The same applies for the same reason, even in a case where it is possible to interpret the provisions of subordinate Acts and subordinate statutes harmoniously among different fields where one does not take precedence over the application of superior laws and regulations, if it is possible to interpret them easily on the grounds of inconsistency and conflict.

The proviso on the scope of dance institute businesses under the Enforcement Decree of the Sports Facilities Act, in order to prevent unfair interpretation results as seen earlier, and to understand the meaning in harmony with each other in consideration of the form and history of the two provisos, it is reasonable to interpret the proviso on the scope of dance institute businesses under the Enforcement Decree of the Sports Facilities Act to confirm that the Sports Facilities Act does not apply separately to a case where a private teaching institute that teaches adults upon meeting the requirements of a private teaching institute under the Private Institutes Act, and further, the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act provides that “the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act” shall not apply

(B) Therefore, in a case where a person who wishes to establish and operate an international standard dance institute files a report to a dance institute business under the Sports Facilities Act or intends to register as a private teaching institute for lifelong education or vocational education under the Private Institutes Act, the competent administrative agency shall not refuse to accept the report or registration insofar as the relevant private teaching institute satisfies the requirements for the report or registration

[Concurring Opinion by Justice Jo Hee-de] (A) Article 2-2(2) of the Private Institutes Act delegates “the classification of the curriculum for each type of private teaching institute” to the Presidential Decree. However, Article 3-3(1) [Attachment 2] of the Enforcement Decree of the Private Institutes Act does not merely define the curriculum for each type of private teaching institute, but also stipulates a proviso to restrict the scope of dance institutes by stipulating that “a dance institute business (excluding dance institute business under the Sports Facilities Act)” is one of the curriculum of a private teaching institute for lifelong education or vocational training.

This proviso aims to prevent a dance institute business under the Sports Facilities Act from registering and operating it as a private teaching institute for lifelong education or vocational training under the Private Institutes Act, and not only seems to deviate from the delegation of the parent law, but also restricts the freedom of occupation of a founder and operator of a dance institute who intends to register and operate an international dance institute as a private teaching institute for lifelong education or vocational training under the Private Institutes Act. Considering the purpose of delegation of the Private Institutes Act and the principle of statutory reservation to restrict fundamental rights (Article 37(2) of the Constitution), it is reasonable to deem that it is not permissible to place a provision restricting the freedom of occupation under the Enforcement Decree without clear delegation

The Private Institutes Act and the Sports Facilities Act are different from the legislative purpose and regulatory aspect, and even if the international standard dance was incorporated into one of the sports activities by the amendment of the Sports Facilities Act on March 31, 1999, it has the characteristic as arts. Therefore, if a private teaching institute teaching international standard dance meets the requirements of private teaching institutes under the Private Institutes Act, it should be deemed that the Private Institutes Act is not the Sports Facilities Act, but the Private Institutes Act is applied.

Considering the legislative purpose, contents, and structure of the Private Institutes Act as well as the relationship with the Sports Facilities Act, the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act shall be deemed null and void as it was enacted beyond the scope of delegation by the parent law.

(B) Inasmuch as the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act is null and void, the Private Institutes Act shall apply insofar as a standard dance institute satisfies the requirements of a private teaching institute under Article 2 subparag. 1 of the Private Institutes Act. Therefore, where a person who wishes to establish and operate a standard dance institute intends to register as a private teaching institute for lifelong education or vocational training under the Private Institutes Act, the competent administrative agency shall not refuse to accept the registration insofar as the said institute satisfies the requirements of a private teaching institute for lifelong education

[Concurring Opinion by Justice Park Sang-ok and Justice Kim Jae-hyung] (A) Two or more provisions on the limitation of citizens’ fundamental rights are contradictory to each other, making it impossible to interpret a harmonious interpretation by a judge. There are cases where it is also impossible to derive a conclusion that one applies because the provisions are not in a relationship with superior and subordinate laws, the former and new laws, and the general laws and special laws. In such a case, all such provisions are deemed to contravene the unity of legal order or the principle of prohibition of inconsistency derived from the principle of a rule of law. If the fundamental rights of the people are unreasonably restricted, the effect of the provisions should be denied to the extent of

In short, if two provisions are inconsistent or conflicted, they cannot be resolved by harmonious interpretation, and if either of them cannot be seen as superior to others, all of the two provisions shall be deemed null and void. The same shall also apply not only to the law, but also to the enforcement decree.

The proviso on the scope of dance institute businesses under the Enforcement Decree of the Sports Facilities Act excluded dance institutes meeting the conceptual requirements of dance institutes under the Private Institutes Act from the application of the Sports Facilities Act. The instant proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act may also be deemed excluded from the application of the Sports Facilities Act on the premise that dance institutes meeting the conceptual requirements of dance institutes under the Sports Facilities Act are subject to the application of the Sports Facilities Act. Accordingly, the instant proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act may also be deemed excluded from the application of the Private Institutes Act on the premise that dance institutes meeting the conceptual requirements of dance institutes

Therefore, the instant proviso on the scope of dance institute businesses under the Enforcement Decree of the Sports Facilities Act and the instant proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act are conflicting and conflicting with one another without giving priority to any other. As such, it violates the unity of legal order or the principle of prohibition of inconsistency, which is derived from the principle of a rule of law, and unfairly limits the fundamental rights of the people, the two provisions to the extent of

(B) Therefore, it is reasonable to view that a person who wishes to establish and operate a standard dance institute may operate a business after filing a report on sports facility business or completing registration of a private teaching institute under the Sports Facilities Act and a private teaching institute for lifelong education or vocational training under the Private Institutes Act, by selecting any one

1. Case summary and key issue

Pursuant to the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons (hereinafter “Private Teaching Institutes Act”), the Plaintiff filed an application for the registration of a private teaching institute teaching international standard dance with the type of private teaching institutes as “private teaching institutes for lifelong education and vocational training (for example),” and the curriculum as “drelicing sports (fore five kinds of nicotine, five kinds of dances). The Defendant rejected the application for registration of a private teaching institute on the ground that the dance institute teaching international standard dance is not subject to the registration of a private teaching institute under the Private Institutes Act (hereinafter “instant refusal disposition”).

The lower court determined that the instant disposition for refusal of registration was unlawful on the ground that a standard dance institute can be registered as a private teaching institute under the Private Institutes Act. Accordingly, the Defendant asserted that the instant disposition for refusal was unlawful on October 25, 201 as the ground of appeal, on the ground that the proviso was added to the “tuition of a private teaching institute” [Attachment 2] of the Enforcement Decree of the Private Institutes Act amended by Presidential Decree No. 23250, Oct. 25, 201, that the term “a dance institute business under the Installation and Utilization of Sports Facilities Act” (hereinafter “proviso on the Scope of dance institutes under the Enforcement Decree of the Private Institutes Act”) regarding dances belonging to the curriculum of a private teaching institute for lifelong education and vocational training (hereinafter “Rules on the Scope of dance institutes under the Sports Facilities

Therefore, the issue of this case is whether a dance institute can be registered as a private teaching institute for lifelong education or vocational training under the Private Institutes Act.

2. Whether a standard dance institute can be registered as a private teaching institute for lifelong education or vocational education under the Private Institutes Act.

A. Systematic interpretation of the relevant statutes

(1) Legislative history of the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act

At the time of enactment by Act No. 719 on September 18, 1961, the former Act on Private Teaching Institutes, a telegraph of the Private Teaching Institutes Act, stipulated the curriculum of a private teaching institute as “knowledge, technology, and arts.” As a result of partial amendment by Act No. 2209 on August 3, 1970, “sports” was added to the curriculum. Dance is a subject that can be classified as arts or sports, and facilities that teach dance have traditional application of the former Act on Private Teaching Institutes (see Supreme Court Decision 90Do1062, Aug. 10, 199, etc.).

The Sports Facilities Act was enacted on March 31, 1989 by Act No. 4106 on March 31, 1989 to unify the affairs concerning sports facilities, which are distributed by the competent ministries or lack of relevant statutes, into the jurisdiction of the sports department, and the title of the Act was changed to the Act on the Establishment and Operation of Private Teaching Institutes by Act No. 4133 on June 16, 1989, and was changed to the title of the Act on the Establishment and Operation of Private Teaching Institutes as of July 8, 2001. The Private Institutes Act also stipulates that the curriculum of private teaching institutes shall be referred to as “knowledge, techniques, and arts”.

체육시설법은 제2조 에서 ‘체육시설’을 ‘체육활동에 지속적으로 이용되는 시설과 그 부대시설’로, ‘체육시설업’을 ‘영리를 목적으로 체육시설을 설치·경영하는 업’으로 각 정의하고 있는데, 1999. 3. 31. 법률 제5942호로 개정된 체육시설법 제10조 제1항 , 제2항 에서 ‘신고 체육시설업’의 하나로 ‘무도학원업’을 신설하고 체육시설업의 종류별 범위를 대통령령에 위임하였다. 그 위임에 따라 2000. 1. 28. 대통령령 제16701호로 개정된 체육시설법 시행령 제6조 [별표 2] 제7호는 무도학원업의 범위를 ‘수강료 등을 받고 국제표준무도(볼룸댄스) 과정을 교습하는 업’으로 정하면서도, ‘학원법에 의한 학원을 제외’한다고 규정하고 있다(이하 ‘체육시설법 시행령 무도학원업의 범위 단서 규정’이라 한다).

여기에서 국제표준무도(볼룸댄스)란 국제적으로 운동종목으로 취급되는 표준무도인 볼룸댄스로서 국제댄스스포츠연맹(WDSF, World DanceSport Federation)이 댄스스포츠라고 칭하는 경기용 춤 10종목, 즉 왈츠, 탱고, 퀵스텝, 폭스트롯, 빈왈츠 등 5개 종목의 모던스탠더드 볼룸댄스(Modern Standard Ballroom Dance)와 룸바, 차차차, 삼바, 파소 도블레, 자이브 등 5개 종목의 라틴아메리카 볼룸댄스(Latin American Ballroom Dance)를 말한다( 대법원 2007. 1. 25. 선고 2005도4706 판결 참조).

The Private Institutes Act regulates the establishment and use of “facilities used as teaching or learning places of knowledge, technology, and arts.” Since the Sports Facilities Act regulates the installation and use of “facilities used for sports activities”, the legislative purpose and the subject and aspect of the regulation are different. The Supreme Court held that the Private Institutes Act shall apply not the Sports Facilities Act, but the Private Institutes Act, in cases where it satisfies the requirements of private teaching institutes under the Private Institutes Act for the purpose of teaching or learning international standard dance and intends to establish and operate certain facilities by meeting the requirements of private teaching institutes under the Private Institutes Act for the purpose of using them as a place for teaching or learning (see Supreme Court Decision 2005Do4706, Jan. 25, 2007).

However, after the Supreme Court Decision was rendered, the educational authority added the proviso that “dances” is excluded from dance institute businesses under the Sports Facilities Act while listing “dances” as one of the curriculum of a private teaching institute for lifelong education or vocational training under the Enforcement Decree of the Private Institutes Act as amended by Presidential Decree No. 23250 on October 25, 2011, and then claims that a private teaching institute that teaches international dance is not allowed to register its private teaching institute because it is not a private teaching institute under the Private Institutes Act

(2) Requirements for registration of a private teaching institute for lifelong education or vocational training under the Private Institutes Act and the scope of application of the proviso to the scope of dance institutes

Article 2 subparag. 1 of the Private Institutes Act defines private teaching institutes as “private teaching institutes for knowledge, techniques (including skills) and arts for not less than 30 days or as “facilities provided for learning places for not less than 30 days” (Article 2 subparag. 1 of the same Act). The kinds of private teaching institutes shall be classified into private teaching institutes for school curriculum and private teaching institutes for lifelong education or vocational training. Private teaching institutes for school curriculum shall be classified into “private teaching institutes under Article 23 of the Elementary and Secondary Education Act”; private teaching institutes for school curriculum under Article 2 subparag. 1 of the Elementary and Secondary Education Act; private teaching institutes for the disabled under any subparagraph of Article 15(1) of the Act on Special Education for the Disabled; private teaching institutes for vocational education (excluding private teaching institutes for vocational education); private teaching institutes for each type under Article 2 subparag. 1 of the Enforcement Decree of the same Act shall be classified into “private teaching institutes for lifelong education or vocational training; private teaching institutes for each type” under Article 2 subparag. 2 of the Elementary and Secondary Education Act. 3.

Article 23 of the Elementary and Secondary Education Act provides that the Minister of Education shall determine the basic matters concerning the standards and contents of the curriculum to be operated by schools, and according to delegation, the specialized curriculum and curriculum of high school arts department (Article 2007-79 of the Ministry of Education and Human Resources Development Notice No. 2007-79 of February 28, 2007) among the “school curriculum” implemented at the time of the instant disposition of refusal of registration, include the subjects of “dance-related class” as one of the specialized curriculum and the contents of “dance-sports” along with “dance.

In full view of the relevant provisions, a private teaching institute that teaches “dance” or “dances sport” included in the school curriculum under Article 23 of the Elementary and Secondary Education Act constitutes a private teaching institute for school curriculum under the Private Institutes Act that teaches dance in the arts field. A private teaching institute that teaches “dance” or “dances sport” for the purpose of lifelong education or vocational training in the arts field, other than a private teaching institute for school curriculum curriculum, constitutes a private teaching institute for lifelong education or vocational training in the art field under the Private Institutes Act. In addition, the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act does not limit the scope of a private teaching institute for school curriculum that teaches dance, and it is clear that the private teaching institute for lifelong education or vocational training that teaches dance is limited to the scope of a private teaching institute for which dance is taught

(3) During the scope of dance institutes under the Private Institutes Act and the Sports Facilities Act

A dance institute under the Sports Facilities Act is defined as ① “business establishments harmful to juveniles” (Article 2 subparag. 5 (a) (vi) of the Juvenile Protection Act), ② facilities that cannot be installed in principle in school environmental sanitation and cleanup zones (Article 6(1)20 of the former School Health Act (amended by Act No. 13946, Feb. 3, 2016; hereinafter the same shall apply) and Article 6 subparag. 3 of the Enforcement Decree of the same Act (amended by Act No. 27831, Feb. 3, 2017); ③ “business establishments harmful to juveniles” (Article 2 of the Act on the Regulation of Amusement Businesses Affecting Public Morals) subject to supervision by the chief of the competent police station. Accordingly, it is a facility that teaches international standard dance for adults.

On the other hand, a private teaching institute for lifelong education or vocational training that teaches dances in the art department under the Private Institutes Act is a facility that teaches dances for the purpose of lifelong education or vocational training, regardless of the subject of education or the type of dances. It shall be deemed that all citizens can receive dances in a dance institute as a private teaching institute for lifelong education or vocational training without age classification (Article 3 of the Framework Act on Education and Article 4(1) of the Lifelong Education Act). A private teaching institute for lifelong education or vocational training under the Private Institutes Act provides that a private teaching institute for lifelong education or vocational training is a type of lifelong educational institution under the Lifelong Education Act [Article 2 subparag. 2(b) of the Lifelong Education Act], and a private teaching institute itself provides that students under Article 2 of the Private Institutes Act may receive vocational education at a private teaching institute for lifelong education or vocational training [the proviso to Article 2-2(1)1(c) of the Private Institutes Act]. However, in light of the legislative intent of the Juvenile Protection Act, even in this case, it shall be deemed that it may not undermine good morals for juveniles.

① Therefore, when meeting the general registration requirements of private teaching institutes under the Private Institutes Act and ② intending to establish and operate private teaching institutes teaching international standard dance dance for adults, both dance institutes under the Sports Facilities Act and private teaching institutes for lifelong education and vocational training under the Private Institutes Act can be satisfied.

(4) Systematic interpretation of the two proviso provisions of the Enforcement Decree in the overlapping area

It is the unique duty of the Supreme Court granted the final authority to interpret the statutes in order to present a statutory interpretation that would resolve such inconsistency or conflict when viewed that there is any inconsistency or conflict between the relevant statutes.

If the meaning of “the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act” is interpreted as excluding the application of the Private Institutes Act in cases where a dance institute that teaches international dance dance is able to report it as a dance institute business under the Sports Facilities Act as alleged by the Defendant, the meaning of “the proviso on the scope of dance institute businesses under the Enforcement Decree of the Sports Facilities Act” shall be construed as excluding the application of the Sports Facilities Act in cases where a dance institute can be registered as a private teaching institute for lifelong education or vocational training under the Private Institutes Act. In such a interpretation, it would be impossible to register or report a dance institute that teaches international dance pursuant to any of the two statutes. This result is not so limited or allowed as it unfairly infringes on fundamental rights, such as freedom of occupation, freedom of business, etc. In particular, establishing and operating sports facilities under the Sports Facilities Act without reporting (Article 38(2)1 of the Sports Facilities Act) and a private teaching institute without registration under the Private Institutes Act (Article 2(1)1 of the Sports Facilities Act).

In light of the need to avoid the legal confusion and instability that may arise when a norm is declared null and void, and the harm caused by the legal gap until a new norm is enacted, in a case where it is unclear whether the provisions of subordinate statutes conflict with those of superior laws and subordinate statutes, and where it is possible to interpret the meaning of subordinate Acts and subordinate statutes as consistent with superior laws and subordinate statutes by comprehensively examining the contents, legislative intent, and history of the relevant Acts and subordinate statutes, it is not easy to declare invalidation on the ground that subordinate statutes are in violation of superior laws and subordinate statutes (Supreme Court Decision 2014Du4502 Decided December 15, 2016). The same reason is for the same reason, if it is possible to interpret harmoniously the provisions of subordinate laws and subordinate statutes on the grounds that the subordinate laws and subordinate statutes are in violation of superior laws and subordinate statutes.

The proviso on the scope of dance institute businesses under the Enforcement Decree of the Sports Facilities Act, in order to prevent unfair interpretation results as seen earlier, and to understand the meaning in harmony with each other in consideration of the form and history of the two provisos, it is reasonable to interpret the proviso on the scope of dance institute businesses under the Enforcement Decree of the Sports Facilities Act to confirm that the Sports Facilities Act does not apply separately to a case where a private teaching institute that teaches adults upon meeting the requirements of a private teaching institute under the Private Institutes Act, and further, the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act provides that “the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act” shall not apply

In the Supreme Court Decision 2005Do4706 Decided January 2, 2005, the Supreme Court held that when a person satisfies the requirements of a private teaching institute under the Private Institutes Act while establishing and operating a certain facility, the Private Institutes Act is not the Sports Facilities Act, but the Private Institutes Act is applied and the Private Institutes Act is subject to registration. Such interpretation does not change with the addition of the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act. Furthermore, it is not readily concluded that the educational authority applying administrative regulations added the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act with respect to dance institutes in the overlapping area to exclude both the Private Institutes Act and the Sports Facilities Act.

Therefore, in a case where a person who wishes to establish and operate a standard dance institute files a report on it to a dance institute business under the Sports Facilities Act or registers it as a private teaching institute for lifelong education or vocational education under the Private Institutes Act, the competent administrative agency should not refuse to accept the report or registration insofar as the relevant private teaching institute satisfies the requirements for the report

B. According to the reasoning of the first instance judgment cited by the lower court, the Plaintiff: (a) deemed the type of a private teaching institute as “private teaching institute for lifelong education and training (e.g., art.),” and (b) applied for registration of a private teaching institute under the Private Institutes Act by providing the curriculum as “dance sport (e.g., five kinds of nicotine, and five types of dances). Therefore, the Defendant’s rejection of registration of the instant case is unlawful under the erroneous premise that it cannot be registered as a private teaching institute under the Private Institutes Act on the ground that the instant proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act was not examined without examining the requirements as a private teaching institute for lifelong education and vocational training in the

C. Although the lower court did not separately determine a private teaching institute for school curriculum and a private teaching institute for lifelong education or vocational training, the lower court determined that the instant disposition of refusal of registration was unlawful on the premise that comprehensively taking account of the circumstances in its holding, it is reasonable to apply the Private Teaching Institutes Act to the Plaintiff who seeks to establish and operate a private teaching institute under the Private Teaching Institutes Act. Examining the foregoing legal doctrine in light of the foregoing, the lower court did not err by misapprehending the legal doctrine on the interpretation of the requirements for the registration

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices, except there is a separate opinion by Justice Jo Hee-de, Justice Park Sang-ok, and Justice Kim Jae-hyung.

4. Concurrence by Justice Jo Hee-de

A. Under the premise that the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act is effective, the Majority Opinion construed to the effect that the Sports Facilities Act does not apply to a case where a private teaching institute teaching international dance for adults has completed registration by meeting the requirements of a private teaching institute under the Private Institutes Act, and that the Private Institutes Act does not apply to a case where it has completed reporting by meeting the requirements of a dance institute business under the Sports Facilities Act. However, for the following reasons, the said proviso should be deemed null and void

B. In a case where an Act delegates a specific matter to a subordinate law, determination of the scope of delegation by the parent law or whether the subordinate law complies with the limits of delegation should be made by comprehensively taking into account the legislative purpose and content of the relevant provision, the structure of the provision, and the relationship with other provisions with respect to whether the details of the subordinate law must be governed by a formal law, and whether the provisions of the subordinate law should be governed by the principle of parliamentary reservation into account the legislative purpose and content of the relevant provision, the structure of the provision, and the relationship with other provisions. Even though the delegation itself clearly state the limits of delegation by using terms with which accurate contents can be known, exceeding the limits of its literal meaning, whether the contents of the subordinate law belong to the scope that can be predicted by the mother law itself, and whether the contents of the subordinate law can be evaluated as a new legislation beyond the stage of concreteizing the delegated contents by expanding or reducing the scope of the terms used in the delegation provision beyond the meaning of the delegation (see Supreme Court en banc Decision 2012Du23808, Aug. 20, 2015).

(1) A private teaching institute refers to a facility that teaches knowledge, techniques (including skills), and arts, or provides them as learning places (Article 2 subparag. 1 of the Private Institutes Act). Article 2 subparag. 1 of the Private Institutes Act explicitly provides for the requirements for a private teaching institute under the Private Institutes Act by defining the purport of a private teaching institute, and thus satisfying the requirements, it shall be deemed a private teaching institute under the Private Institutes Act. Article 2-2(2) of the Private Institutes Act delegates the delegation of “the classification of curriculum by type of a private teaching institute” to the Presidential Decree. Article 3-3 [Attachment 2] of the Enforcement Decree of the Private Institutes Act provides that “A private teaching institute” shall not simply classify the curriculum by type of a private teaching institute, but shall be “a dance (excluding dance institute business under the Sports Facilities Act)” as one of the curriculum of a private teaching institute for lifelong education or vocational training.

(2) The instant proviso purports to prevent a dance institute business under the Sports Facilities Act from registering and operating as a private teaching institute for lifelong education or vocational training under the Private Institutes Act. Not only seems to deviate from the delegation of the parent law, but also restricts the freedom of occupation of the founder and operator of a dance institute seeking to register and operate a dance institute that teaches international dance as a private teaching institute for lifelong education or vocational training under the Private Institutes Act. Considering the purport of delegation of the Private Institutes Act and the principle of statutory reservation to limit fundamental rights (Article 37(2) of the Constitution), it is reasonable to deem that granting a provision that restricts the freedom of occupation under the Enforcement Decree without clear delegation of the parent law

(3) The legislative purpose of the Private Institutes Act is to ensure the sound development of private teaching institutes by prescribing the matters concerning the teaching of school curriculum under Article 23 of the Elementary and Secondary Education Act or the matters concerning the teaching conducted at a private teaching institute for lifelong education or vocational education (Article 1). The Private Institutes Act imposes on the founder and operator of a private teaching institute the responsibility to make efforts to provide convenience to students, to reduce the burden of students by collecting appropriate teaching fees, and to provide equal opportunities for education (Article 4(1)). A person who intends to establish and operate a private teaching institute, having the facilities and equipment prescribed by the Act and subordinate statutes, provides that he/she shall file an application with the superintendent of education for the registration of establishment and operation of a private teaching institute (Article 6(1)), and provides that a person who establishes and operates a private teaching institute shall file an application with the superintendent of education for the registration of establishment and operation of a private teaching institute (Article 8). Article 15(1) of the Private Institutes Act provides for the necessary facilities and equipment for each curriculum (Article 15).

On the other hand, sports facilities refer to facilities and ancillary facilities continuously used for sports activities (Article 2 subparag. 1 of the Sports Facilities Act). The purpose of the Sports Facilities Act is to contribute to improving the people’s health and ensuring good use of their leisure hours by encouraging the installation and use of sports facilities and ensuring the sound development of sports facility business (Article 1). The sports facility business requiring report, other than registered sports facility business, is provided for the operation of a sports facility by reporting to the competent administrative agency only when it satisfies the standards for facilities prescribed by statutes for the safety management of sports facilities (Articles 10 and 20). As such, the Sports Facilities Act provides that sports facilities, the basic purpose of which is to regulate sports facilities used for sports activities, and the placement of sports leaders who instruct users to use sports facilities safely (Article 23). However, the dance facility business, which is a kind of sports facility business requiring report, is excluded from the category of business obligated to place sports leaders (Article 22(1) [Attachment 5] of the Enforcement Rule of the Sports Facilities Act.

As can be seen, the Private Institutes Act and the Sports Facilities Act vary from the legislative purpose and regulatory aspect, and even if the international standard dance was incorporated as one of the sports activities by the amendment of the Sports Facilities Act on March 31, 1999, it has the characteristic as an artistic artist. Therefore, if a private teaching institute that teaches international standard dance meets the requirements of a private teaching institute under the Private Institutes Act, it shall be deemed that the Private Institutes Act, not the Sports Facilities Act, applies to it.

(4) In light of the legislative purpose, contents, and structure of the Private Institutes Act as well as the relationship with the Sports Facilities Act, the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act should be deemed null and void since it was enacted beyond the scope of delegation under the parent law.

C. Since the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act is null and void, the Private Institutes Act applies to a standard dance institute insofar as it satisfies the requirements of a private teaching institute under Article 2 subparag. 1 of the Private Institutes Act (see Supreme Court Decision 2005Do4706, Jan. 25, 2007). Therefore, when a person who intends to establish and operate a standard dance institute intends to register it as a private teaching institute for lifelong education or vocational training under the Private Institutes Act, the competent administrative agency should be deemed as not refusing to accept the registration insofar as the relevant private teaching institute satisfies the requirements for a private teaching institute for lifelong education or vocational

Nevertheless, the Majority interprets the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act to mean that the Private Institutes Act shall not apply separately in cases where a private teaching institute that teaches standard dance dance dance institutes satisfies the requirements for dance institute business under the Sports Facilities Act and completes a report. In the case of interpreting the Majority Opinion, various regulations on lessons under the Private Institutes Act shall not apply solely on the ground that a person who establishes and operates a standard dance institute has completed a report on dance institute business under the Sports Facilities Act. However, there is no ground to interpret that the legislators intended such a result. The Majority Opinion’s interpretation does not fit the overall legal system, regulatory content, and legislative purpose of the Private Institutes Act and the Sports Facilities Act

라. 한편 학원법 제2조의2 제2항 이 “학원의 종류별 교습과정의 분류”만을 대통령령으로 정하도록 위임한 것과는 달리, 체육시설법은 “체육시설의 종류”, 체육시설업의 “종류별 범위와 회원 모집, 시설 규모, 운영 형태 등에 따라 그 세부 종류”를 대통령령으로 정하도록 위임하고 있다( 제3조 , 제10조 제2항 ). 그 위임에 따라 체육시설법 시행령 제6조 [별표 2] ‘체육시설업 종류별 범위’는 무도학원업을 ‘수강료 등을 받고 국제표준무도(볼룸댄스) 과정을 교습하는 업(평생교육법, 노인복지법, 그 밖에 다른 법률에 따라 허가·등록·신고 등을 마치고 교양강좌로 설치·운영하는 경우와 학원법에 따른 학원은 제외)’이라고 규정하고 있다. 이처럼 ‘체육시설법 시행령 무도학원업의 범위 단서 규정’은 체육시설법의 구체적 위임에 따라 신고 체육시설업의 일종인 무도학원업의 범위를 제한하는 규정이다. 또한 위 단서 규정은 국제표준무도를 교습하는 시설이 학원법상 학원의 요건을 충족한 경우에는 체육시설법이 아니라 학원법이 적용된다는 점을 규정하는 것으로, 앞서 본 학원법과 체육시설법의 전체적인 법률 체계와 규율 내용 및 입법 목적에도 부합하므로 적법·유효한 규정이라고 보아야 한다.

For this reason, I express my concurrence with the Majority Opinion, Justice Park Sang-ok, and Justice Kim Jae-hyung.

5. Separate opinion by Justice Park Sang-ok and Justice Kim Jae-hyung

A. The Majority Opinion appears on the premise that the specific norm control on the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act is not necessarily necessary for the resolution of the instant case. However, the instant proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act conflicts with and conflicts with the instant proviso on the scope of dance institute businesses under the Enforcement Decree of the Sports Facilities Act. Such a problem must be resolved by the method of specific norm control that the Supreme Court declares that both provisos are null and void. The reasons are as follows

B. As a matter of course of the principle of democracy and the rule of law under the Constitution, legal norms must be clear and contradictory to each other. Acts and subordinate statutes shall be defined as clear terms and contents so that they can be aware of the content of regulation in advance, provide guidance for future action, and at the same time, provide objective judgment guidelines to law enforcement officers to prevent discriminatory or arbitrary statutory interpretation and enforcement. If the law enforcement cannot be seen as an act prohibited from what is the content of the norm, and what is the act permitted, legal stability and predictability cannot be ensured. In particular, the norm restricting fundamental rights should be clearly defined on the basis of the principle of democracy and the rule of law (see, e.g., Constitutional Court en banc Decision 2008Hun-Ma638, Oct. 28, 2010; Supreme Court Decision 2013Do12939, Jan. 29, 2014).

The legal order of the State shall form a unification body, and any inconsistency and conflict between the norms shall be excluded (see Supreme Court Decision 2000Du2716, Aug. 24, 2001). No statute may require the criminal to comply with the principle that it is impossible for the criminal to comply with the said rules. The same shall apply where more than one of the two norms is contradictory. If it is unclear whether the two or more different norms are to be followed, the two or more conflicting norms should be interpreted harmoniously or derived the norm to be followed by the principles of the application of the law, such as the superior law, the new law, the preferential law, and the special law.

However, there is a limit on these traditional methods alone. Two or more provisions on the restriction of fundamental rights of the people are contradictory to each other, making it impossible to interpret them in harmony with each other. There are cases where it is also impossible to derive a conclusion that one applies because they do not have relations with superior laws, subordinate laws, old laws and new laws, and general laws and special laws. In such cases, all such provisions are contrary to the principle of the rule of law and order, which are derived from the principle of the rule of law, or the principle of prohibition of inconsistency. As a result, if the fundamental rights of the people are unfairly restricted, the effect of those provisions should be denied to

In short, if two provisions are inconsistent or conflicted, they cannot be resolved by harmonious interpretation, and if either of them cannot be seen as superior to others, all of the two provisions shall be deemed null and void. The same shall also apply not only to the law, but also to the enforcement decree.

C. The Sports Facilities Act and the Private Institutes Act differ from their legislative purpose and the subject and side of regulation. Between the instant proviso on the scope of dance institute businesses under the Enforcement Decree of the Sports Facilities Act and the instant proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act, it is difficult to recognize the relationship between superior and subordinate laws, the former and new laws, the general law and the special law. Accordingly, any one cannot be deemed to have priority over the other.

As pointed out in the Majority Opinion, ① satisfying the general registration requirements of private teaching institutes under the Private Institutes Act and ② intending to establish and operate private teaching institutes teaching international standard dance for adults, both dance institutes under the Sports Facilities Act and private teaching institutes for lifelong education and vocational training under the Private Institutes Act. However, the proviso on the scope of dance institute businesses under the Enforcement Decree of the Sports Facilities Act exclude dance institutes meeting the concept requirements of private teaching institutes under the Private Institutes Act from the application of the Sports Facilities Act, and the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act exclude dance institutes meeting the concept requirements of dance institutes under the Sports Facilities Act from the application of private teaching institutes

As a result, there may arise a regulatory gap that does not fall under sports facilities under the Sports Facilities Act, but also does not fall under a private teaching institute for lifelong education or vocational training under the Private Institutes Act. Even if a person who wishes to establish and operate a standard dance institute files a sports facility report under the Sports Facilities Act, its acceptance may be refused, and even if a person files an application for registration of a private teaching institute for lifelong education or vocational training under the Private Institutes Act, the registration of a private teaching institute may be refused. Such regulatory gap may be subject to arbitrary punishment from a criminal perspective. The law enforcement officer may either constitute an act of installing and operating a dance institute without reporting under the Sports Facilities Act (Articles 38(2)1 and 20(1) of the Sports Facilities Act) or an act of establishing and operating a dance or dance institute without registration under the Private Institutes Act (Articles 22(1)1 and 6 of the Private Institutes Act). This is because there is room for prosecution by deeming that a person who intends to establish and operate a dance institute falls under a private teaching institute for dance or dance without registration under the Private Institutes Act.

The proviso on the scope of dance institute businesses under the Enforcement Decree of the Sports Facilities Act excluded dance institutes meeting the conceptual requirements of dance institutes under the Private Institutes Act from the application of the Sports Facilities Act. The instant proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act may also be deemed excluded from the application of the Sports Facilities Act on the premise that dance institutes meeting the conceptual requirements of dance institutes under the Sports Facilities Act are subject to the application of the Sports Facilities Act. Accordingly, the instant proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act may also be deemed excluded from the application of the Private Institutes Act on the premise that dance institutes meeting the conceptual requirements of dance institutes

Therefore, the instant proviso on the scope of dance institute businesses under the Enforcement Decree of the Sports Facilities Act and the instant proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act are conflicting and conflicting with one another without giving priority to any other. As such, it violates the unity of legal order or the principle of prohibition of inconsistency, which is derived from the principle of a rule of law, and unfairly limits the fundamental rights of the people, the two provisions to the extent of

Therefore, it is reasonable to view that a person who wishes to establish and operate a standard dance institute may operate a business after the person selected either a dance institute under the Sports Facilities Act or a private teaching institute for lifelong education or vocational training under the Private Institutes Act for its business purposes and completed the report of sports facility business or the registration of a private teaching institute. The Defendant’s ground of appeal is without merit to assert that the standard dance institute cannot be registered as a private teaching institute under the Private Institutes Act on the ground of the proviso on the scope of dance institutes

D. The Majority Opinion states that the inconsistency and conflict between the two proviso provisions of the Enforcement Decree can be resolved through the systematic and normative interpretation of the two proviso provisions. However, the Majority Opinion has the following problems.

First, the Majority Opinion’s interpretation, as in the Majority Opinion, is inconsistent with the clear legislative intent and language of the two provisos. “The proviso on the scope of dance institute businesses under the Enforcement Decree of the Sports Facilities Act” was made from the intent of excluding the application of the Sports Facilities Act on the premise that the Private Institutes Act shall apply in cases where a private teaching institute meets the requirements of dance institutes under the Private Institutes Act. “The instant proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act” also was made with the intent of excluding the application of the Private Institutes Act from the application of the Sports Facilities Act on the premise that the private teaching institute teaching dance institutes meet the requirements of dance institute businesses under the Sports Facilities Act. This is apparent in light of the legislative

In particular, [Attachment 2] of the Enforcement Decree of the Sports Facilities Act lists the cases where dance institute businesses under the Sports Facilities Act are excluded from the scope of dance institute businesses under the Lifelong Education Act, the Welfare of the Aged Act, and other Acts and subordinate statutes, and “private teaching institutes under the Act on the Establishment, Operation and Extracurricular Lessons.” Unlike using the phrase “a case where a private teaching institute is established and operated after completing permission, registration, report, etc. under other Acts and subordinate statutes.” Unlike the former one, the latter uses the phrase “private teaching institutes under the Private Institutes Act” in the former one, the latter uses the phrase “private teaching institutes under the Private Institutes Act.” In the latter case of meeting the requirements for dance institute under the Private Institutes Act, it is not intended to provide that the case where a private teaching institute is registered under the Private Institutes Act is excluded from the application of the Sports Facilities Act. Since the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act uses the phrase “private teaching institute businesses under the Private Institutes Act,” the proviso on the exclusion of dance institute businesses under the Sports Facilities Act should be construed as one of the Sports Facilities Act.

In such intent, the legislators of the Enforcement Decree provide that “private teaching institutes under the Private Institutes Act are excluded” in the Enforcement Decree of the Sports Facilities Act, and the Enforcement Decree of the Private Institutes Act excludes dance institute businesses under the Sports Facilities Act. Nevertheless, the Majority Opinion construed the meaning of the two proviso in breach of the language and text to mean that “a private teaching institute teaching international standard dance is not subject to the Sports Facilities Act where it has completed registration by meeting the requirements of a private teaching institute under the Private Institutes Act,” and that “a private teaching institute shall not be separately subject to the Private Institutes Act in the event it has completed

Second, interpreting the Majority Opinion as above does not resolve the problem beyond the scope of delegation by the mother law. Article 10(2) of the Sports Facilities Act only delegates “specific types of sports facility business depending on the scope of each type of sports facility business, the recruitment of members, the size of facilities, the type of operation, etc.” and Article 2-2(2) of the Private Institutes Act delegates “the classification of the curriculum for each type of private teaching institute” to the Presidential Decree. However, if the two proviso provisions stipulate the subject of exclusion of application by the mother law, the Enforcement Decree, which is a subordinate norm, provides for the exclusion of application by the superior law without explicit delegation of the mother law, is inconsistent with the normative classification system.

The Majority Opinion argues that the Enforcement Decree is interpreted differently from the intent and language of the person who enacted the Enforcement Decree in order to avoid the declaration of invalidation of the provisions of the Enforcement Decree, and thus, is lacking persuasive power. It is clearly stated that the Supreme Court should declare the provisions of the proviso of the Enforcement Decree that the provisions are null and void through specific

Justices Kim Young-soo (Presiding Justice)