[2] Where the Superintendent of an Office of Education requested reconsideration of the Ordinance which provides all matters necessary for the protection of school authority and the support of educational activities in accordance with the direction of the Minister of Education to request reconsideration, but the City Council re-resolutions the Ordinance as the original design, the case holding that the above Ordinance was unlawful since it was prescribed by the Ordinance without delegation

[2] The case holding that Article 5 of the above Ordinance provides for the prohibition of discrimination and disadvantage against teachers belonging to the status of teachers, and Articles 6, 9, and 10 provide for the establishment, organization, and operation of the Educational Authority Protection Committee and the Educational Authority Support Center for the Protection of Teachers for the Protection of Teachers' Status, and it is unlawful as it is prescribed by the Ordinance of the Ministry of Education without delegation of the Act and its legislative power, in case where the Superintendent of an Office of Education requested reconsideration of the Ordinance of the Ministry of Education concerning the matters necessary for the protection of teachers' rights and the support of educational activities, but the City Council re-resolutions the original bill as the original bill, since the matters concerning the status of teachers need uniform regulations throughout the nation, and the State bears considerable expenses for this purpose

The following facts may be acknowledged in full view of the evidence Nos. 1 and 2-1 through 6 of the evidence No. 1 and the purport of the whole pleadings:

A. On May 2, 2012, the Defendant resolved on the Seoul Special Metropolitan City Ordinance on the Protection of School Rights and the Support for Educational Activities (hereinafter “instant Ordinance”). On May 4, 2012, the Plaintiff, at the superintendent of the Seoul Special Metropolitan City Office of Education, issued a request for reconsideration on the grounds that “the instant Ordinance violates Article 31(4) of the Constitution on the Independence and Professionality of Education,” and that “the affairs concerning teachers are not subject to the enactment of the Ordinance as delegated affairs, and thus, it is illegal to stipulate matters concerning education and teachers as a municipal ordinance without delegation of the Act,” and accordingly, the superintendent of the Seoul Special Metropolitan City Office of Education issued a request for reconsideration of the instant Ordinance on May 23, 2012. However, on June 20, 2012, the Defendant re-decided the instant Ordinance as it is.

B. The purpose of the Ordinance of this case is to determine all the matters necessary for the protection of educational rights and the support of educational activities (Article 1); the matters concerning the protection of teachers’ educational activities in the event of interference with classes or infringement of human rights against teachers (Article 4); the discrimination and disadvantages against teachers (Article 5); the matters concerning the duties of the superintendent of education (Article 6); the matters concerning the duties of the superintendent of education for the protection of educational rights (Article 7); the matters concerning the establishment, organization, and operation of the Educational Right Protection Committee and the Educational Right Protection Support Center (Articles 9 and 10).

2. Validity of the Ordinance of this case

A. According to Articles 22 and 9 of the Local Autonomy Act, matters that a local government may enact municipal ordinances are limited to autonomous affairs, which are the affairs inherent in the local government, and those delegated to the local government under individual Acts and subordinate statutes, and matters concerning the affairs delegated to the head of a local government or delegated to the head of a subordinate local government, in principle, do not fall under the scope of the enactment of municipal ordinances. In addition, determination as to whether the affairs prescribed by the head of a subordinate local government are autonomous affairs or delegated to the head of a subordinate local government shall take into account the form and intent of the relevant Acts and subordinate statutes. However, determination as to whether the affairs require the head of a subordinate local government to perform are based on whether the affairs require a uniform operation on a national scale, or the subject of the ultimate responsibility for such affairs, etc. (see, e.g., Supreme Court Decisions 9Da30, Sept. 17, 1999; 201Du12153, Apr. 11, 2013).

B. Article 5 of the Ordinance of this case provides for prohibition of discrimination and disadvantage on the grounds of gender, religion, faith, age, place of origin, physical condition, pregnancy or childbirth, prohibition of discrimination on the grounds of membership and activity of a trade union or a teachers' organization, freedom of religion, etc. of teachers, and Articles 6, 9, and 10 of the Ordinance stipulate matters concerning the establishment, organization, operation, etc. of the Teachers' Rights Protection Committee and the Educational Rights Protection Support Center for the protection of teachers' status.

C. However, in light of the legal principles as seen earlier, inasmuch as the matters concerning the status of teachers need to be determined by law in a uniform manner, and the State bears considerable expenses for this, the affairs related thereto shall be deemed to be the state affairs.

1) The Constitution stipulates that fundamental matters concerning the status of teachers shall be prescribed by Act to ensure the effective guarantee of fundamental rights to receive national education (Article 31(6) of the Constitution). Here, matters concerning the status of teachers refer to matters concerning the acquisition, maintenance, loss, etc. of status, such as qualifications, appointment, remuneration, service, guarantee of status, guarantee of rights and interests, disciplinary action, etc. of teachers.

2) Accordingly, with respect to the guarantee of the status of teachers, the Public Educational Officials Act provides that “no public educational official shall be demoted, temporarily dismissed, or dismissed against his/her will without a sentence, disciplinary action, or any other cause as determined by the Public Educational Officials Act” (Article 43(2)), and the Private School Act also provides that “private school teachers shall not be subject to any unfavorable disposition, such as temporary retirement or dismissal against his/her will without a sentence, disciplinary action, or any other cause as determined by the Private School Act” (Article 56(1)). In addition, the provisions on teacher honorary treatment provide that schools of various levels shall establish a City/Do Educational Authority Protection Committee and City/Do Office of Education to deliberate on matters concerning the protection of teachers’ educational activities (Articles 6 and 6-2).

3) In addition, the State and local governments should establish and implement policies necessary to secure a stable educational finance (Article 7 of the Framework Act on Education). In this regard, the Local Education Subsidy Act was enacted to ensure the balanced development of education by providing the State with all or some of the financial resources required for the establishment and management of educational institutions by local governments (Article 1). The Minister of Education grants general subsidies and special subsidies to local governments (Articles 5 and 5-2). In addition, the Special Act on the Improvement of Teachers’ Status provides that the State and local governments should give special preferential treatment to the remuneration of teachers, and the Private School Act provides that the remuneration of teachers of the relevant schools shall be maintained at the level of remuneration of the national and public school teachers (Article 3). If the State and local governments deem it necessary for the promotion of education, they may provide subsidies or other subsidies to provide private school education (Article 43(1) of the Private School Act).

4) Meanwhile, the Local Autonomy Act stipulates that the affairs concerning the promotion of education, sports, culture, and arts shall be the affairs of local governments (Article 9(2)5), and the Local Education Autonomy Act stipulates that the affairs concerning education, art, and science of local governments shall be affairs of the Special Metropolitan City, Metropolitan City, and Do (Article 2), but the status of teachers shall not be prescribed (Article 2).

D. Therefore, Article 5 of the Ordinance of this case provides for the prohibition of discrimination and disadvantage of teachers who are related to the status of teachers, and Articles 6, 9, and 10 provide for the establishment, composition, and operation of the Educational Authority Protection Committee and the Educational Authority Protection Support Center for the protection of the status of teachers as prescribed by the Ordinance without delegation of statutes, which goes beyond the limit of the legislative authority.

3. Conclusion

Therefore, unless Articles 5, 6, 9, and 10 of the Ordinance of this case are illegal and invalid, the re-resolution of the Ordinance of this case shall be denied in its entirety. Thus, the plaintiff's claim seeking the exclusion of the validity of the re-resolution shall be accepted, and the costs of lawsuit shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-deok (Presiding Justice)