[2] Whether Article 11-2 [Attachment 2] 2 of the Public Educational Officials Act is in violation of the Constitution, which provides additional points to applicants for a specific area as graduates such as colleges of education at the time of new appointment of teachers (negative)

[2] Article 11 (1) of the former Public Educational Officials Act (amended by Act No. 4304 of Dec. 31, 1990) which provides that the Constitutional Court shall preferentially appoint a national or public teacher from a university of education. According to the decision of unconstitutionality, the appointment examination was conducted for those who have completed a national or public university of education. In order to reduce side effects that may arise thereafter and promote equal development of local education, the Public Educational Officials Act was amended by Act No. 723 of Oct. 15, 2004, which provides that "a person who graduated from a university of education, etc., and applies to an area determined by the appointing authority" shall be deemed to violate the principle of unconstitutionality and purpose of Article 11-2 of the former Public Educational Officials Act, and the expected problems at the time of abolition of the above provision, and there are no reasonable grounds to regard that the above provision violates the principle of unconstitutional equality among those who have already been delegated by the relevant local legislative authority and those who have not been admitted from a university of education.

2. Plaintiffs 1 and 5’s claims against the superintendent of education of the Seoul Special Metropolitan City Office of Education, the claims against Plaintiffs 6, 7, and 9, the claims against the superintendent of education of the Daejeon Metropolitan City Office of Education of Plaintiffs 10, and the claims against the superintendents of education of Defendants 12 and 13, all of which are dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

A. On November 1, 2004, the Defendants published the summary of the implementation in relation to the competitive examination for selecting candidates for appointment of public middle school teachers (including special health and health teachers) (hereinafter “instant appointment examination”), and the main contents are as follows.

(1) Screening method

The appointment examination of this case is divided into the first examination and the second examination, and the second examination is divided into the second examination, and the second examination is divided into the two subjects of education (or special education) and the second examination, and the second examination consisting of the essay examination, the interview, the evaluation of the ability to perform the class, etc., which is composed of the first examination and the second examination.

(2) Additional points

(A) Additional points for those who were enrolled in each region’s school (hereinafter “regional plus points”)

A graduate of the Korean Teachers' University located in Seoul Special Metropolitan City or the Seoul Special Metropolitan City (excluding those exempt from the duty of service), who did not have a teacher's career (excluding those exempt from the duty of service), who graduated from the Korean Teachers' University located in Seoul Special Metropolitan City or in the Seoul Special Metropolitan City on February 5, 2005, or who did not have a teacher's career (excluding those exempted from the duty of service) and graduated from the Korean Teachers' University on February 2, 2005, on the recommendation of the Superintendent of the Provincial Office of Education among those who graduated from the Korean Teachers' University located in Gangwon-do, Gangwon-do, and those who graduated from the Korean Teachers' University located in Gangwon-do on February 2, 2005 (including those who were exempted from the duty of service of teachers and those who had a teacher's career in the teachers' career in the area of Daejeon Special Metropolitan City, Daejeon, or the graduate from the Korean Teachers' University and those who did not have a full career of teacher's career in the five North Korean Teachers' University and those who did not have a graduate in the Daejeon.

(B) Additional points for persons who have rendered distinguished services to the State (hereinafter referred to as “additional points for distinguished services”).

Persons eligible for employment benefits under Article 29 of the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State and Article 16 of the Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State and Article 20 of the Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State and persons eligible for employment assistance under Article 20 of the Act

(3) Selection of successful applicants

Successful examinees in the first examination shall be determined in the order of the highest score of points calculated by adding up the first written examination points, the results of the university (or the results converted from the first examination), and additional points within 1.3 times each of the number of persons recruited by subjects from among those who score at least 40% of the number of persons recruited by subjects in the first written examination (education and majors), respectively.

A successful applicant of the second examination shall be determined in the order of the highest score in the sum of the first written examination results, additional points, college records (or the first written examination results), and the results of the second written examination results.

B. On December 5, 2004, the Plaintiffs applied for the first examination for the appointment of this case, and the detailed details of the application are as stated in [Attachment 1].

C. The Defendants, on January 8, 2005, excluded the Plaintiffs from the announcement of successful applicants in the first examination on the grounds that the Plaintiffs’ scores fall short of the minimum score of successful applicants in each subject of the first examination of appointment examination of this case (hereinafter “instant disposition”).

The passing score (attached Form 2) shall be the case where the plaintiffs' acquisition score, the regional score, and the pass score where the meritorious score is recognized, and the case where the local score is recognized (attached Form 4).

D. The plaintiffs were not subject to the application of both distinguished and distinguished points, and the remaining plaintiffs except for plaintiffs 2 and 3 were not subject to the regional additional points, and the examination results of the plaintiffs applying for the appointment examination of this case except for distinguished and regional additional points (attached Form 3), except for distinguished and distinguished points, and where they are included in the case except for regional additional points (attached Form 5).

E. Meanwhile, the Constitutional Court, in cases of 204Hun-Ma675, 981, 1022 on February 23, 2006 (merged), applied the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Service to the State (amended by Act No. 7104 on January 20, 2004; hereinafter “former Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State”) and Article 31(1) and (2) of the Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State (amended by Act No. 7104 on January 20, 200; hereinafter “former Act on the Honorable Treatment of Persons, etc. of Distinguished Service to the State”) and Article 31(1) and (2) of the former Act on the Honorable Treatment of Persons of Distinguished Service to the State (amended by Act No. 7104 on Dec. 29, 2005; hereinafter “former Act”).

[Basis for Recognition]

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

(1) The part of the main points of merit

As seen earlier, the Constitutional Court rendered a ruling of inconsistency with the Constitution on February 23, 2006 with respect to the legal provisions that served as the basis for the application of the points of distinguished service. The above ruling of inconsistency with the Constitution shall be one of the modified decisions of unconstitutionality that ordered provisional application in order to prevent legal confusion between the persons eligible for additional service and the persons eligible for additional service, although the provisions of the law are substantially unconstitutional. However, the plaintiffs are the direct parties to the above decision of the Constitutional Court, and there is no concern that social confusion may be caused because the law which is unconstitutional is not applied to the parties to the above case. Therefore, in terms of the purport of the above ruling of inconsistency with the Constitution or the guarantee of effectiveness of specific norm control in the above decision of inconsistency with the Constitution, the above ruling of inconsistency with the Constitution shall be deemed to have a retroactive effect on the plaintiffs who are the parties to whom the above

Therefore, the Constitutional Court's decision on February 23, 2006, which declared that the system of additional points for meritorious service is unconstitutional considering the above nature of the provisional order, the purport of the system of adjudication on the constitutionality of law, and the detailed feasibility of the case, etc., is applied retroactively to the plaintiffs. Thus, the disposition of the defendants based on the unconstitutional law is unlawful.

(2) The part of the regional virtual store

Based on subparagraph 2 of Article 11-2 [Attachment 2] of the Public Educational Officials Act (hereinafter “instant legal provision”), granting additional points only to those who have graduated from colleges of education located in other regions is discrimination against those who have graduated from colleges of education located in other regions, and thus, it is contrary to the principle of equality. Since regional origin points are granted based on “area” which is not entirely related to the ability and ability of those who wish to be appointed, it is contrary to the principle of equality and the equal opportunity of the right to participate in public affairs, and ultimately restrict the Plaintiffs’ freedom to choose their occupation.

In addition, the legal provision of this case allows the appointment authority to exercise arbitrary authority by delegating the authority to determine the "area" to the appointment authority by failing to establish any standards for the content of the regional decision, and thereby allowing the appointment authority to exercise arbitrary authority. This is also in violation of the principle of clarity under the Constitution or the principle of prohibition of comprehensive delegation legislation.

Therefore, the legal provision of this case limits the right to hold a public office under Article 25 of the Constitution and the freedom to choose an occupation under Article 15 without any public interest basis under Article 37(2) of the Constitution, and also violates the principle of equality under Article 11 of the Constitution and the prohibition of comprehensive delegation of legislation under Article 75 of the Constitution, and thus, the disposition of this case by the Defendants based thereon is unlawful.

B. Relevant statutes

[Attachment 6] The entry into the relevant statutes shall be as follows.

(c) Markets:

(1) As to the claims of Plaintiffs 2, 3, 4, 8, and 11

Even if the Constitutional Court's decision of inconsistency with the Constitution on February 23, 2006 regarding the system of distinguished points is retroactively applied, and the legal provisions of this case concerning the system of distinguished points are unconstitutional, the above plaintiffs were subject to a disposition of failure, such as the case of excluding distinguished points (attached Form 3) and the case of the case of excluding the area of distinguished points (attached Form 5), so the above plaintiffs shall not be deemed to have a legal interest in seeking the cancellation of the disposition of this case (Plaintiff 2 and 3 themselves enjoys benefits by being subject to the area of distinguished points), and therefore the above plaintiffs have no legal interest in this regard).

Therefore, the plaintiffs' respective claims against the defendants are unlawful.

(2) As to the plaintiff 6, 7, and 10's assertion on merit points

As seen earlier, the Constitutional Court decided on February 23, 2006 that “Article 31(1) and (2) of the former Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State, Article 31(1) and (2) of the former Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State, Article 31(3) of the former Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State, Article 22(1) and (2) of the former Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the State, and Article 22(1) and (2) of the former Act on the Honorable Treatment of Persons, etc. of Distinguished Services to the May 18, 2006 (hereinafter “instant provision”) shall continue to apply to the instant provision until the legislators amended on June 30,

In other words, the Constitutional Court's "The unconstitutionality of the provision of this case is due to the fact that the additional system for persons who have rendered distinguished services to the State and their families does not allow any legal confusion in terms of legislative policies, and that discrimination is only effective. The legislators, at the examination of public officials, may reduce the effect of discrimination to the extent that it does not excessively restrict the exercise of the right of persons who have rendered distinguished services to the State. At the same time, the legislators may choose a method to cure the unconstitutionality of the provision of this case by re-resolutioning the scope of persons who have received additional benefits, and thus, the removal of the unconstitutionality of the provision of this case must be made by the legislative division. Accordingly, since the legislative body needs to prevent any legal confusion caused by the persons who have rendered distinguished services to the State and their families until the amendment of the provision of this case, provisional application of the provision of this case should be ordered until the legislative body is early, and the provision of this case should not be replaced by the legislation of this case until June 30, 2007."

As above, when the Constitutional Court declares the inconsistency of the provisions of this case with the Constitution, the Court and other state agencies and local governments do not decide that "it shall suspend the application of the provisions of this case until the legislator amends the provisions of this case" (see the Constitutional Court en banc Order 9HunGa18, May 31, 2001, 99HunBa71, 111, 99HunBa71, 111, 200HunBa51, 64, 65, 85, 201HunBa2, 201 (combined)] and ", as it is necessary to prevent legal confusion that a person entitled to additional benefits has experienced until the amendment of the provisions of this case, the provisional application of the provisions of this case has been made until the date of the closing of argument in this case (the time of the closing of argument in this case has not been exceeded). Accordingly, the above decision of inconsistency with the Constitution cannot be understood as allowing the provisional application of the provisions of this case before the amendment was implemented, and there is no reason to regard the above parties as 9819.

Therefore, this case's disposition against plaintiffs 6, 7, and 10 of the Superintendent of the Office of Education of Gangwon-do, which are based on the basis of the ground provisions of the system of distinguished points is legitimate, respectively, and the above plaintiffs' assertion is without merit on different premise.

(3) As to the plaintiff 1, 5, 6, 9, 12, and 13's assertion on the regional home delivery points

(A) The purpose of the establishment and abolition of the legal provision of this case

(1) Purpose of establishment

Article 11 (1) of the former Public Educational Officials Act which provides that the Constitutional Court shall give priority to the appointment of a national or public teacher from a national or public college of education on October 8, 1990 is subject to an examination of appointment according to the decision of unconstitutionality as to Article 11 (1) of the former Public Educational Officials Act. As a result, in the past, where excellent human resources are admitted to a local school in Seoul and have contributed to improving the quality of local education by selecting a local middle school as a local middle school teacher instead of a prestigious group in Seoul, there is a growing phenomenon that has been going into a large city such as Seoul, a new appointment examination was conducted after only completing a course of education by entering a new department in a general university, or rather than faithful to the curriculum within a college of education, it was not desirable that the examination of appointment will be conducted only in preparation for an examination, etc. < Amended by Act No. 7221, Oct. 15, 2004>

(2) Expected problems in the discontinuation.

The discrimination between the department and the department that has the course of teaching staff in the general university is disappeared, and the significance of the existence of the university as the purpose university may result in the dilution of the significance of the existence of the university in the field of crime. Accordingly, in the case of a middle school teachers training institution (colleges of education, etc.) which has a big difference in the appointment ratio compared to the teachers' training, it is likely to face the debrising crisis.

(C) At present, the total score is partially reflected in the university (20 points), and in the case of the person who was enrolled in the college, the score is divided into 10 grades based on the university study results, but in the case of the person who was enrolled in the college, the score reflects the score based on the difference of the total number of applicants for the first examination for each subject of the first examination, not the result of the college re-examination, but the result results that the person who was enrolled in the college of the criminal who applied for the examination with the results already determined and determined can be more unfavorable than those who were enrolled in the college of the non-school who were determined on the basis of the open examination.

As a result, the buffer station due to the shortage of teachers in agricultural, fishing, and remote areas in agricultural, fishing, and remote areas, it is likely that the education rights protection of the students in the above areas will not be granted due to the shortage of teachers in the areas of agriculture, fishing, and remote areas.

(B) Whether the principle of equality is violated

① According to Article 11(1) of the Public Educational Officials Act, new appointment of teachers is made through an open screening process. According to Article 11-2 of the same Act, in an open screening process conducted under Article 11(1) of the same Act, the appointment authority may grant additional points to those falling under [Attachment 2] within the scope of 10/100 of the full score of the primary examination. According to [Attachment 2] subparagraph 2 of [Attachment 2], those who have graduated from colleges of education (including the education of universities and colleges) and comprehensive teachers’ training colleges and apply in areas determined by the appointment authority are eligible for additional points.

② As above, the legal provision of this case discriminates against those who were enrolled in colleges of education located in different regions from those who were enrolled in colleges of education located in regions determined by the appointing authority, and discriminates against those who were enrolled in colleges of education and those who were not colleges of education located in regions determined by the appointing authority (it is also a provision that discriminates against those who were enrolled in teachers, but the above applicants are not teachers, and this part is not determined).

However, the principle of equality under Article 11(1) of the Constitution does not mean the absolute equality that denies all discriminatory treatment, and thus, only if there is a discrimination without any reasonable ground, it violates the principle of equality. Therefore, we examine whether the legal provision of this case is a provision that discriminates without reasonable grounds.

The discrimination of persons from local colleges of education and those from other local colleges of education;

Article 31(1) of the Constitution provides that "All citizens shall have the right to receive equal education according to their abilities." Accordingly, all citizens shall have the right to receive equal quality education without any discrimination in regions, and the State shall have the duty to prepare a system necessary for education of equal quality. The provision of this case shall contribute to the development of local education by allowing excellent human resources to enter local criminal groups and to be appointed as local secondary school teachers, thereby contributing to the development of local education, and ultimately, by protecting and fostering local criminal groups, there are reasonable grounds for discrimination as a system to ensure that all citizens, as provided in Article 31(1) of the Constitution, have the right to receive equal education according to their abilities.

(B) Discrimination between the person from a college of education and the person from a non-university of education

In the teachers' training, the curriculum of the college of education is more specialized than the curriculum of the non-colleges of education, and it is necessary to attract excellent human resources in the college of education, which aims to establish the unique purpose of the teachers' training, and the additional points in attracting excellent human resources are very efficient systems in reality, and there was discrimination in the regional sanitation system in the case of the colleges of education and non-colleges of education since the entrance into the university. Accordingly, there was a difference between those who support the colleges of education and those who support the colleges of education and those who support the non-colleges of education in terms of the desire for the teachers' training and the expectation for their entry into the colleges.

The legal provisions of this case do not violate the principle of equality, depending on causes caused by a disaster.

(C) Whether the right to official recruitment and the freedom to choose an occupation is violated

(1) Right to hold public office and freedom to choose an occupation.

Article 25 of the Constitution provides that "All citizens shall have the right to hold public office under the conditions as prescribed by Act," thereby guaranteeing the right to hold public office with which all citizens, including election public officials, and the right to hold public office of all State agencies and local governments, including public officials, are held the status of public educational officials. The legal provision of this case provides that the applicants of colleges of education shall be granted additional points only to those who were enrolled in colleges of education, thereby limiting the opportunities for applicants competing with them to take public office. In fact, the above plaintiffs were disqualified in the appointment examination of this case due to their lack of regional origin, and thus, they constitute a restriction on the right to hold public office and the infringement of the freedom to choose jobs under Article 15 of the Constitution.

(2) Whether the principle of excessive prohibition is violated.

As above, even if the right to hold a public office and freedom to choose an occupation are guaranteed under the Constitution, it may be restricted as an Act for the sake of national security, maintenance of public order, or public welfare, unless it infringes on the essential contents of the Act. However, even if it is restricted as an Act, the legislation that restricts fundamental rights shall meet the legitimacy of the legislative purpose, the appropriateness of the means for achieving the purpose thereof, the minimum degree of damages caused by the legislation, and the balance between

The legitimacy of the legislative purpose

As seen above, Article 11 (1) of the former Public Educational Officials Act was ruled unconstitutional on October 8, 1990 by the Constitutional Court of Korea, and its legislative purpose is recognized as legitimate because it was newly established to prevent the existing excellent human resources from entering a local criminal group instead of a prestigious Ga in Seoul and thus making a lot of contribution to improving the quality of local education. The current situation where the former excellent human resources were to be selected as local middle school teachers and to improve the quality of local education has disappeared, and only the major cities such as Seoul, or to enter a new department of a general university or college and prepare an appointment examination by completing only teaching courses, or rather than complying with the course of study within a college of education.

(B) Appropriateness of the means

Although there are various methods to achieve the above legislative purpose, since the regional store system is practically very efficient, it can be seen as meeting the appropriateness of the means. This is because the causal relationship between the legislative purpose and the legislative means is clear and the effect of the law that can achieve the above legislative purpose can also be seen as certain.

Category Category minimum extent of infringement

Although the legal provisions of this case restrict part of the plaintiffs' right to attend public office and freedom of choice of occupation, the regional price points applied by the defendants pursuant to the legal provisions of this case are 2-3.5 points, and it is difficult to view it as excessive additional points in light of the national technical qualification additional points (1 to 2 points), multiple major premium points (2 points), and non-major premium points (1 points). It is difficult to see that the legal provisions of this case are excessive to the extent that it is practically impossible for those who acquire teachers from non-colleges of education to enter school positions to enter school positions. Considering the fact that it is not easy to take less restrictive legislative measures than the legal provisions of this case, it cannot be viewed as violating the minimum principle of infringement because the degree of infringement on the right to attend public office and freedom of choice of occupation under the legal provisions of this case is excessive.

Creshion of legal interests

Considering the importance of preventing any situation that is not desirable to take the examination preparation only in the course of study at an employment examination institute, etc. rather than conforming to the course of study, etc., the right to take public office and the right to choose occupation are limited to a certain extent, and thus, cannot be deemed to violate the principle of the balance of legal interests.

(3) Fixedness.

As a result, the above circumstances and the local virtual point system mentioned above are applied temporarily to protect the trust of visitors to the school in accordance with Article 2 of the Addenda of the Public Educational Officials Act, it cannot be deemed that the legal provision of this case violates the Constitution by infringing the above plaintiffs' right to attend public office or the right to equality against the principle of proportionality.

(D) Whether the constitutional prohibition of comprehensive delegation of legislation and the principle of clarity are violated

Article 75 of the Constitution provides that "The President may issue Presidential Decrees to the matters for which the scope of delegation is specifically determined by Act," which requires the basis of delegation legislation, and the identity and clarity of delegation. Here, the existence and clarity of delegation means that any person, as the basic matters for the contents and scope of delegation already prescribed by Presidential Decree are specifically prescribed by Act, shall be able to predict the outline of delegation from the relevant Act, which shall be prescribed by Presidential Decree.

With regard to the unconstitutionality of Article 11(2) of the former Public Educational Officials Act (amended by Act No. 7223 of Oct. 15, 2004), the Constitutional Court made a decision on Mar. 25, 2004 that “the quid pro quo point and multiple major care points in the employment examination for teachers at public and secondary schools may prevent any person excluded from the application from entering the public office, so it is important in the nature of restrictions on the right to participate in the public office, and that there is no need to promote a fair adjustment between conflicting interests through the open debate process in which the criticism and possibility of participation of the relevant parties are guaranteed. Accordingly, with respect to the above additional points, the Constitutional Court made a decision on Oct. 15, 2004 that “the above additional points are not subject to the application or assigned points, and there is no provision that the above additional points are subject to the application of Article 21(2) of the former Public Educational Officials Act (amended by Act No. 7231 of Oct. 21, 2004).

After that, Article 11(2) of the Public Educational Officials Act was amended as of October 15, 2004, and Article 11-2 was newly established. Article 11-2 of the Public Educational Officials Act explicitly explicitly provides for basic matters, such as the subject of application or allocation of marks, as seen earlier, and [Attachment 2] subparagraph 2 of the attached Table 2 provides that “an area designated by the appointing authority” shall be immediately referred to as “an area designated by the appointing authority without delegation by Presidential Decree to the area subject to the application of a local virtual store.” As such, the instant legal provision does not directly delegate the application of a local virtual store to the Presidential Decree, etc., but does not violate the principle of prohibition of comprehensive delegation. Since each of the appointment authorities has already specified a certain area, it cannot be predicted, it does not violate the principle

(e) Conclusion

Therefore, the instant disposition against Plaintiffs 1 and 5 of the Superintendent of the Office of Education of the Seoul Special Metropolitan City, and Plaintiffs 6, 9 of the Superintendent of the Office of Education of the Seoul Special Metropolitan City, and Defendants 12, and 13 of the Superintendent of the Office of Education of Gangwon-do based on the instant legal provision is lawful, respectively, and the aforementioned Plaintiffs’ assertion is without merit on

3. Conclusion

Therefore, since the lawsuit of this case against the defendants by plaintiffs 2, 3, 4, 8, and 11 is unlawful, each of them is dismissed, and since the remaining plaintiffs' claims are without merit, they are decided as per Disposition by the assent of all.

Justices Kim Jong-hwan (Presiding Justice)