[2] Whether matters concerning the status of teachers are state affairs (affirmative)

[3] In a case where the Minister of Education issued a request for reconsideration with respect to "the Ordinance concerning the Right of Education and the Protection of Educational Activities, etc.," which provides for teachers' status, but the Superintendent of an Office of Education promulgated the Ordinance without complying with such a request for reconsideration, the case holding that the above Ordinance was unlawful by exceeding the limit

The following facts may be acknowledged in full view of the purport of the entire pleadings in the statements Nos. 1, 2, and 3 (Additional Nos. 1, 3 ( omitted).

(1) On October 17, 2013, the Defendant passed a resolution on the Ordinance concerning the Right of Education and the Protection of Educational Activities, etc. (hereinafter “instant Ordinance”). On October 29, 2013, the Plaintiff directly filed the instant lawsuit seeking to exclude the effect of the resolution of the instant Ordinance pursuant to Article 172(7) of the Local Education Autonomy Act, which is applicable mutatis mutandis by Article 3 of the Local Education Autonomy Act, on the grounds that “the determination of matters concerning the status and rights of teachers and the protection of educational activities by municipal ordinance is against the legal guarantee regarding the autonomy and expertise of education under Article 31(4) of the Constitution and the legal principle of teacher’s status and expertise under Article 31(6) of the Constitution.” However, the Intervenor’s Intervenor promulgated the Ordinance on the Right of Education and the Protection of Educational Activities, etc. on November 1, 2013.

(2) The purpose of the Ordinance of this case is to ensure the qualitative improvement of education by providing for matters necessary for the teaching rights and the protection of educational activities so that teachers may concentrate on educational activities (Article 1), matters concerning the protection of teachers’ educational activities in the event of interference with classes of students or infringement of human rights against teachers (Article 3), matters concerning the status of teachers (Article 6), matters concerning prohibition of discrimination and disadvantage against teachers (Article 7), religious freedom of teachers, freedom of conscience and freedom of privacy (Articles 8, 9, and 10), matters concerning the right to rest of teachers (Article 11), guarantee of teachers’ educational rights and support for the improvement of teachers’ status (Article 13), etc.

2. Validity of the Ordinance of this case

(1) 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. Furthermore, in order to determine whether the affairs prescribed by the head of a subordinate local government are autonomous affairs or the affairs entrusted to the head of a subordinate local government, the form and purport of the relevant Acts and subordinate statutes shall be first considered. However, in addition, the determination shall also be made by taking into account whether the nature of the affairs requires uniform performance on a national scale, the burden of expenses related thereto, and the subject of final responsibility (see Supreme Court Decisions 9Do30, Sept. 17, 199; 2011Du153, Apr. 11, 2013).

(2) Article 6 of the Ordinance of this case provides for the professionality, autonomy, and neutrality of teachers under the title of “the status of a teacher, etc.”; Article 7 provides for the prohibition of discrimination and disadvantage without justifiable grounds on the grounds of gender, religion, faith, age, disability, place of origin, physical conditions, pregnancy or childbirth, disciplinary power, etc. of a teacher; Articles 8, 9, and 10 of the Ordinance provide for the freedom of religion, the freedom of conscience, the freedom of privacy, and the matters concerning the guarantee of teachers’ educational rights and support for the improvement of the status of a teacher.

(3) However, as seen below, matters concerning the status of teachers need to be determined by law in a uniform manner, and the State bears considerable expenses for this purpose, the relevant affairs ought to be deemed state affairs (see Supreme Court Decision 2012Da145, Feb. 27, 2014).

① Article 31(6) of the Constitution provides that fundamental matters concerning the status of teachers shall be prescribed by the Act in order to ensure the effective guarantee of fundamental rights to be educated by citizens. 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, disciplinary action, etc. of teachers.

(2) As to the guarantee of the status of teachers, Article 43 (2) of the Public Educational Officials Act provides that “no teacher shall be demoted, temporarily laid off, or dismissed against his/her will without a sentence, disciplinary action, or any other cause as determined by the Public Educational Officials Act,” and Article 56 (1) of the Private School Act provides that “No teacher of a private school shall be subject to any unfavorable disposition, such as temporary retirement or dismissal from office against his/her will unless he/she is subject to a sentence, disciplinary action, or any other cause as determined by the Private School Act.” In addition, the Ministry of Education shall have an appeals review committee for teachers for the examination of disciplinary action and other unfavorable disposition against his/her will (Article 7 (1) of the Special Act on the Improvement of Teachers’ Status and the Protection of Educational Activities), it shall have the School Education Authority Protection Committee and the City/Do Office of Education establish a City/Do Educational Authority Protection Committee (Articles 6 and 6-2 of the Regulations on Honorable Treatment of Teachers).

③ The State and local governments should establish and implement a policy necessary to secure educational finance stability (Article 7 of the Framework Act on Education). In this regard, the State and local governments enacted the Local Education Subsidy Act for the purpose of promoting the balanced development of education by providing all or some of the financial resources necessary for the establishment and management of educational institutions of local governments. This provision provides that the Minister of Education grants general subsidies and special subsidies to local governments (Articles 1, 5, and 5-2 of the Local Education Subsidy Act). In addition, Article 3 of the Special Act on the Improvement of Teachers’ Status and the Protection of Educational Activities provides that the State and local governments shall give special preferential treatment to teachers’ remuneration to teachers; Article 43(1) of the Private School Act provides that the State and local governments shall maintain the level of remuneration of teachers of the relevant schools; and Article 43(1) of the Private School Act provides that the State and local governments may grant subsidies or provide other subsidies for the support of private school education,

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

(4) Therefore, Article 6 of the Ordinance provides for the status of a teacher; Article 7 provides for the prohibition of discrimination and disadvantage on the ground of disciplinary power, etc. that falls under the status of a teacher; Article 13 provides for institutional maintenance, such as legal consultation, grievance settlement, and mutual aid programs to guarantee the educational authority of the Superintendent of an Office of Education and improve the status of a teacher; it is unlawful as it goes beyond the bounds of the legislative authority of the Ordinance without delegation of the Act.

3. Conclusion

As long as Articles 6, 7, and 13 of the Ordinance of this case are illegal and invalid, the 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 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 on the bench.

Justices Lee Sang-hoon (Presiding Justice)