2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The court's explanation on this part is the same as the statement in the corresponding column of the judgment of the court of first instance. Thus, it is citing this in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Of Article 14 of the Rules of the Public Notice of the Examination of this case, the part restricting the age to apply for examination (hereinafter “instant provision”) is null and void for the following reasons. Thus, the instant disposition based on which this is based shall be revoked in an unlawful manner.

1) As to the form of the instant provision

① According to Article 96(2) of the Enforcement Decree of the Act, the purpose of this case’s regulation is to prescribe matters necessary for the public announcement of the entrance examination pursuant to Article 96(2) of the Act, and there is no ground for this case’s regulation since there is no delegation to stipulate the restriction on the age of application for the public announcement of the entrance examination in the upper level under Article 43 of the Act and Article 96 of the Enforcement Decree of the Enforcement Decree. This case’s regulation was enacted beyond the scope of delegation. It is apparent in light of the fact that, according to the delegation of Article 97(2) of the Enforcement Decree, the application for the public announcement of the entrance examination for high schools (hereinafter “public announcement of the entrance examination”), which is prescribed by Ordinance of the Ministry of Education, Science and Technology, has not limited

② The limitation of the age for applying for the preliminary examination is an important matter regarding “the right to undergo education according to ability,” which is the fundamental right under the Constitution, and such limitation should be conducted in the form of law. However, such restriction does not expressly provide for in the Act, and only exists in the examination regulations of this case, which is in violation of the principle of statutory reservation under Article 37(2) of the Constitution, and is also in violation of Article 4 of the Framework Act on Administrative Regulation.

2) As to the content of the instant provision

(1) Persons subject to compulsory education have a right to receive education pursuant to Article 31(1) of the Constitution, and they have the obligation to receive elementary education and education as determined by Acts, at least, shall be borne by their protectors pursuant to Article 31(2) of the Constitution, and as a result, their protectors have the obligation to receive compulsory education as a result, they do not have the obligation to receive elementary school education and education as determined by Acts and subordinate statutes. In addition, the primary school education system is realized through school education, but the basic school education system provides that the right to receive education is basically realized through school education and the right to receive education according to their abilities and aptitudes (Article 3), education as an educational system for realizing the right to receive education (Article 9), social education (Article 10), and social education (Article 10), it cannot be interpreted that only school education is a method for elementary school education, and the obligation to attend school shall not be interpreted as an obligation to attend school formally. Accordingly, the right to apply to elementary school and the obligation to receive education should be restricted by the Constitution on March 1, 19, etc.

② Under Article 13(1) of the Act, any person who has entered an elementary school and ordinarily graduated from a middle school in the year following the year in which the date on which he/she reaches 6 years of age falls shall be able to enter a middle school in the year following the year in which he/she reaches 12 years of age. However, according to the provisions of this case, if a person who intends to enter a middle school after passing an examination for middle admission falls under 12 years of age as of March 1 of the base date of the examination for middle admission, he/she shall not be granted a qualification for an examination for middle admission under the provisions of this case and may enter a middle school in a long time in the year following the year in which the date on which he/she reaches 12 years of age falls. This is against the right to receive compulsory education under Articles 8 and 13 of the Framework Act on Education and, if he/she becomes 5 years of age after entering an elementary school, he/she shall be able to enter the middle school as soon as possible, and the provisions of this case shall be delayed.

③ The first entrance examination notice is merely a qualifying examination to evaluate the academic achievement equal to or higher than that of elementary school graduates, and whether or not to allow the entrance of middle school to those qualified for such examination depends on the decision of the entrance examination authority. The effectiveness of the first entrance examination education should be realized through its own improvement, and it cannot be used as a means to impose restrictions on the application age for the second entrance examination. The instant provision is in violation of the regulatory principles as provided in Article 5 of the Framework Act on Administrative Regulations, since the necessity of the regulation and the feasibility of the regulatory purpose

B. Relevant statutes

The court's explanation on this part is the same as the entry in the corresponding column of the judgment of the court of first instance except for any additional modification as follows. Thus, it refers to Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act as it is.

1) 제1심 판결 [별지] ‘관계 법령’의 ‘초·중등교육법’란 중 『■ 초·중등교육법』을『■ 초·중등교육법 (2012. 1. 26. 법률 제11219호로 개정되기 전의 것)』으로 변경.

2) In addition to the judgment of the first instance court (attached Form), the following provisions are added to the relevant statutes:

『■ 고등교육법 (2011. 7. 21. 법률 제10866호로 개정되기 전의 것)

Article 33 (Qualifications for Admission)

(1) Universities and colleges (including industrial colleges, teachers' colleges, junior colleges, and cyber colleges, but excluding graduate school universities and colleges) shall be those who have graduated from high schools or those recognized as having an equivalent or higher academic background pursuant to Acts and subordinate statutes.

C. Determination

1) Elementary school compulsory education and examination publication system

A) compulsory education and school education

Article 31(2) and (3) of the Constitution of the Republic of Korea provides that “All citizens shall have the children under their care receive at least elementary education and education prescribed by law,” and Article 8(1) of the Framework Act on Education provides that “Compulsory education shall be conducted at least six years’ elementary education and secondary education for three years.” This compulsory education system aims to ensure that all persons without any discrimination due to social and economic reasons have the right to receive education by opening the minimum educational door to the public and practically guaranteeing the right to receive education. For this purpose, the Constitution imposes the obligation to attend the children under their care and the obligation to establish and maintain the public education system on free implementation of compulsory education and the obligation to secure facilities.

As a result, Articles 9 and 12 of the Framework Act on Education provide for the establishment and management of elementary schools, middle schools, special schools, etc. necessary to send all persons subject to compulsory education to schools, the ideology of school education, and securing facilities necessary. Article 13(1) and (3) of the Act provides for all citizens to attend elementary schools from March 1 of the year following the year in which all children or children under their care reach the age of 6 to the end of February of the year following the year in which they reach the age of 12 falls. Furthermore, Article 14 of the Act provides for the obligation to attend elementary schools from the beginning of the school year following their graduation to the end of February of the year following the year in which they reach the age of 15 to the age of 15, and Article 27 of the Act provides that the obligation to attend middle schools may be exempted or postponed only if certain reasons are acknowledged. Furthermore, the early promotion and early graduation regulations of Article 27 of the Act provide that persons with outstanding talent may be granted qualifications for early admission to schools of higher schools.

In full view of the above provisions, the legislators, in principle, determined that the 6-year primary education out of compulsory education should be implemented through the elementary school, and that the 3-year secondary education should be implemented through the middle school, and therefore, the current law is a means of realizing the principle of compulsory education.

B) School recognition system and official approval publication

Meanwhile, the right to receive education guaranteed under Article 31(1) of the Constitution basically means to realize equality in the area of education, which means equal educational opportunity for all citizens. This means that equal educational opportunity should be guaranteed to all citizens. However, academic background is a kind of legal status which serves as an important condition for individuals to enter a school of higher grade or to take various qualifying examinations at the same time in choosing occupation, etc., and the State has a foundation to realize and guarantee the fundamental right to realize the equal educational opportunity and to realize the personality so that each citizen of the means to realize the equal educational opportunity, who is the means to realize the equal educational opportunity according to his/her ability, can freely realize his/her own personality and realize the personality. Thus, the State has the duty to fairly and appropriately operate the basic right by supporting and reading the acquisition of academic ability of those who have not acquired educational ability in accordance with the purport of the above recognition system (see Constitutional Court Order 2003Hun-Ma173, Nov. 24, 2005).

Accordingly, Articles 43 and 47 of the Act and Article 33 of the Higher Education Act provide that persons, other than graduates of regular schools, who have been recognized as having an equivalent or higher academic background than those who have graduated from regular schools, shall be qualified to enter schools of higher level. It is understood that not only those who have completed the pertinent curriculum at regular schools, but also those who have not received regular school education, hold a way to be able to recognize an equivalent academic background, and the above provisions have specified each of the above provisions' delegation.

C)the primary education as compulsory education and the secondary education examination and notification system;

As seen above, in addition to regular school education, it is inevitable to allow a person to undergo a dynamic education with essential culture, common sense and virtue in life of today's democratic state, social state, state, and cultural state (see Constitutional Court Order 93HunMa192, Feb. 24, 1994). However, as seen earlier, the method of realizing compulsory education under the current law is school education, and in particular, the method of realizing the basic level of compulsory education is not only just a simple knowledge transfer to children of the same age, group life and social adaptation ability, cultivation of social norms, towing and ethics education, and cultivation of historical awareness, etc. of children of the same age, but it is inevitable to allow a person to undergo a dynamic education with essential knowledge and virtue in life in life of today's democratic state, social state, state, and cultural state (see Constitutional Court Order 93HunMa192, Feb. 24, 1994).

d)the age from which they should receive elementary education as compulsory education;

Article 13(1) of the Act regarding the age of the obligation to attend an elementary school provides, “In principle, it shall be from March 1 of the year following the year in which the date on which he/she reaches the age of 6 to the end of February of the following year to which the date on which he/she reaches the age of 12 belongs. In order to guarantee the right to receive equal elementary school compulsory education according to his/her ability, the legislators' establishment of certain standards is inevitable, taking into comprehensive consideration the developmental stages and social reality of the former personal perspective for children, and the period of the obligation to attend an elementary school shall be deemed to be six years of age and the period of education

However, Article 13(2) of the Act provides that “The first day of March of the year following the year in which the date on which he/she reaches five years of age falls” or “the first day of March of the year following the year in which he/she reaches seven years of age falls” may vary depending on the age of school attendance by each child. However, this provision is a supplementary provision to rectify the problems under the uniform age regulations by allowing the time of school attendance to be adjusted according to individual circumstances such as children, and the decision of our legislators in principle on the age on which he/she shall undergo elementary school compulsory education ought to be respected with priority.

2) As to the form of the instant provision

A) Whether the delegation legislation goes beyond the limitation

Article 96 of the Enforcement Decree provides for "a person who has been recognized as having an equivalent academic background with a graduate from an elementary school under the Acts and subordinate statutes" pursuant to the delegation of Article 43 of the Act, first of all, listed "a person who has passed the examination and announcement" in Article 13 Paragraph (1) Item 1 of the Enforcement Decree, and again re-enters to the Educational Rules of the City/Do, such as the examination and announcement of this case, limited to "necessary matters in conducting the examination and announcement" in Article 13 Paragraph (2) of the Enforcement Decree. However, as seen earlier, since the examination and announcement of middle admission are exceptionally recognized as an exceptional recognition system, a certain qualification needs to be required in application for the above purport, and such qualification requirements may not include age limit matters related to the age limit of the elementary school. Accordingly, the above provision provides that a person who is over 12 years of age (based on March 1) who has first passed the upper school age limit of the elementary school under Article 13 Paragraph (1) of the Act shall be eligible to enter an elementary school, and a person who is exempted from school due to undergo an examination or exemption.

As such, the provision of this case on the limitation of the age to apply for the mid-entry Examination is based on delegation by Article 43 of the Act and Article 96 of the Enforcement Decree of the Act, and the regulatory age is merely a specification of the matters already planned, or inherent in the provisions on the age to attend an elementary school under Article 13 of the Act, and the limitation of the above age to apply for the Examination does not have to be newly established pursuant to the provisions of this case (as can be seen by each entry in the evidence Nos. 8 and 9, even if the Educational Rules of Gwangju Metropolitan City, Gangwon-do, and Jeonnam-do do not have any provision on the limitation of the age to apply for the Examination, the limitation of the age to apply for the Examination clearly stated the limitation of the age to apply for the Examination, and (2) In lieu of the provision of this case in the Gyeonggi-do Educational Rules, the provisions on

Therefore, this case's provision on limitation of application age cannot be deemed to be without grounds for delegation or to be beyond the scope of delegation.

Meanwhile, as pointed out by the Plaintiff, the “Rules on the Examination for Admission to High Schools” which provides for qualifications for the examination of entrance to high schools does not limit the age of application. However, the following circumstances are ① Elementary school education as constitutional right, whereas middle school education is determined as compulsory education in legislative policy in consideration of the national finance, etc.; whereas middle school education aims at providing secondary education on the basis of elementary school education (Articles 38 and 41 of the Act). Since the purpose of elementary school education is to enforce secondary education on the basis of citizen’s life (Articles 38 and 41 of the Act), compulsory education of middle school is more important than forcing children and children under their care to attend school, and it is more important that the equal opportunity of education should be implemented extensively due to the development of society. ② Elementary school education of middle school is based on the premise of graduation from elementary school, and it is difficult to uniformly determine the age of entrance to middle school from five to seven years, and it is difficult to determine the age of elementary school as a result of the implementation of the system such as early graduation.

Therefore, we cannot accept this part of the plaintiff's assertion.

B) Whether Article 4 of the Principles of Legal Reservation and the Administrative Regulation Act was violated or not

The Plaintiff’s assertion that it violated the principle of statutory reservation is premised on the infringement of “the right to receive education according to the ability,” but “the right to receive education according to the ability” is a guarantee of equal opportunity to receive education without discrimination if it has the ability as a prerequisite to receive a certain education, and does not guarantee the right to demand any opportunity to receive education suitable for the ability, unlike other persons on the ground that it has the ability to receive education. Furthermore, even under the current law, a child with excellent talent can be granted early admission qualifications through the reduction of the term of school years within the framework of school education. Thus, it is difficult to deem that the Defendant restricted his application for the middle admission examination on the ground of the Plaintiff’s age, thereby infringing on the right to receive education according to his ability.

In addition, according to the evidence Nos. 12-2 and 3 of this Act, with respect to the limitation of the age for applying for the mid-to-date examination on August 31, 1998, the defendant restricted the age of elementary school students to the minimum extent to perform their duties in order to normalize the elementary school education which is a compulsory curriculum, the object of the Regulation Regulation> the person who is not over 12 years of age as of March 1 of the implementation year of the Public Notice may not comply with the Public Notice; < The Regulation Regulation>>>>>>>>>>>>>>> the period of attending school under Article 13 of the Elementary and Secondary Education Act, Article 13(1) of the Elementary and Secondary Education Act, Article 96(2) of the Enforcement Decree of the Elementary and Secondary Education Act, and Article 4 of the Framework Act on Administrative Regulation does not violate Article 31 and Article 13 of the Constitution.

Therefore, the plaintiff's assertion on this part cannot be accepted.

3) With respect to the content

A) Whether limiting the age for applying for the examination on the ground of the necessity of the elementary education through school education violates the purport of the Constitution and Framework Act on Education concerning the rights and duties of education.

Article 31(2) and Article 13(2) of the Constitution of the Republic of Korea recognize the right to self-determination on education of children or children under their care by imposing an obligation on all citizens to attend the elementary school. However, since compulsory education at a certain level is aimed at guaranteeing the right to receive minimum compulsory education by allowing them to be conducted on all children without depending on their individual judgment, it shall be conducted through school education, and it shall not be allowed to replace the primary compulsory education with the method of recognizing the academic background through exceptionally recognized completion of the first compulsory education. (In light of the Plaintiff’s assertion, if a person under the age limit of attending the elementary school is allowed to apply for the second compulsory education, it would result in choosing an elementary school education and the second compulsory education rather than compulsory education, which would go against the purport of Article 31 of the Constitution of the Republic of Korea and the Framework Act on Education). Accordingly, it would not be possible for the Plaintiff to obtain the aforementioned compulsory education through an interpretation of the law, which goes against the Plaintiff’s obligation to receive the first compulsory education within the scope of education curriculum.

In addition, the right to lifelong education, social education, etc. cited by the Plaintiff is a welfare education for those who did not receive an adequate opportunity for education at the time, or require additional education, and there is such a system that the right to attend an elementary school can not be exempted from the obligation to attend an elementary school (which refers to an active duty to attend an elementary school so that all persons can grow up, not simply the duty to attend a school). Rather, Article 14 of the Act provides that the right to attend an elementary school may be exempted or postponed only when certain reasons are recognized

The plaintiff asserts that the provision of this case is unreasonable on the premise that the school attendance duty exists under Article 13 of the Act because the plaintiff had been postponed. However, it does not completely exempt the parent from the obligation of school attendance due to the delay of the duty of school attendance. Article 14 (2) of the Act, where the plaintiff intends to re-enter the school, he/she shall determine the school year after assessing his/her academic ability. In this case, if the school year of a re-enters without being exempted from or postponed from the obligation of school attendance, the pertinent number of years should be added to the age provided for in Article 13 of the Act. Thus, the plaintiff's assertion on the premise that the plaintiff is not subject to Article 13 of the Act is not acceptable.

Therefore, the age limit does not go against the purpose of the Constitution and the Framework Act on Education in the medium admission examination announcement, so this part of the plaintiff's assertion is not acceptable.

B) Whether the instant provision discriminates without reasonable grounds against those who were under 12 years of age (based on March 1) among those who want to apply for the middle school entrance examination, as compared with those who completed elementary school education and enter middle school.

The plaintiff was 9 years of age at the time of applying for the middle school entrance examination. Even if it is assumed that the provisions of this case, as alleged by the plaintiff, also those who passed the middle school entrance examination, set the age limit at 11 or 10 years of age so that they can enter middle school on the same age as that of the students entering middle school after normal graduation from the elementary school, the plaintiff still is 9 years of age. Thus, the ground for invalidation of the provisions of this case asserted by the plaintiff in this part is not directly related to the plaintiff's specific rights and obligations, and thus, it cannot be viewed as a ground for illegality of the disposition of this case.

Furthermore, even if the Plaintiff, for whom the obligation to attend an elementary school was postponed, enters a middle school later than those who ordinarily graduated from an elementary school and enter a middle school, it is merely treated differently due to the Plaintiff’s reason that the Plaintiff did not attend an elementary school for a certain period of time due to the postponement of the obligation to attend a middle school, not discrimination without reasonable grounds. Furthermore, it is difficult to view that the Plaintiff did not enter a middle school at a certain age to have infringed the right to receive compulsory education provided for in Articles 8 and 13 of the Framework Act on Education, on the ground that the age of entering a middle school was derived from the reduction of the age of entering an elementary

Therefore, we cannot accept this part of the plaintiff's assertion.

C) Concerning the assertion that the necessity and possibility of regulation is not recognized

(i)The necessity of the regulation

First of all, the plaintiff argues that the examination for middle school admission is a system different from that for middle school admission, but the examination for middle school admission is a means of acquiring qualifications for admission to middle school or other schools of higher grade, as it is a supplementary educational background system to provide elementary school graduates with an opportunity to enter a school, and therefore its existence can be recognized as a means of acquiring qualifications for admission to middle school or other schools of higher grade. (If the examination for middle school admission is an independent educational background system, there is no reason to restrict students in elementary school from applying for compulsory education, and ultimately, it will result in the selective education system for compulsory education).

The plaintiff seems to have passed the middle school entrance examination and the middle school entrance examination is not permitted. However, Article 13 of the Act provides that "from the beginning of the school year following the middle school graduate from the elementary school" with regard to the time of the age of the middle school school attendance attendance, the age of the middle school entrance examination is determined depending on the age of the elementary school entrance, the period of education, and the reduction of the term of school attendance, etc., and the children under the age of the middle school cannot participate in the middle school entrance examination. Thus, the plaintiff's assertion that the middle school entrance examination public notice is a separate system unrelated to the entrance of the middle school is nothing more than the plaintiff's independent opinion (if according to the above logic of the plaintiff, a person who is postponed from attending the middle school after acquiring the qualifications for entrance to the middle school through the middle school entrance examination and then can substantially enjoy the effect of exemption from the obligation to attend the middle school by continuously delaying the obligation to attend the middle school until the time of entrance examination).

The plaintiff asserts that the success in the middle-entry examination is unnecessary as an achievement of the elementary school education goal. However, as seen earlier, the current law stipulates school education as a basic means of realization of the elementary school education, and aims at the middle-entry education without carrying out simple knowledge delivery. In light of the above, it is difficult to accept it.

Shebly Regulation Purpose

This part of the plaintiff's assertion is understood to the purport that since it is impossible to secure the effectiveness of elementary education by limiting the age of application for the preliminary examination, the provision of this case constitutes a regulation that is not feasible.

However, as seen earlier, the limitation of the age for applying for the preliminary examination is naturally derived from the supplement of the system, and it is not a new regulation, so there is no practical benefit to independently consider the possibility of regulatory purpose (the plaintiff's assertion is more so in that it can be linked to the question about the compulsory education system itself). In addition, it is reasonable that the primary public education should be improved and developed through efforts at the national level, but the improvement of the primary public education and the implementation of the obligation to attend the elementary school is a problem at all different levels.

Abstract, we cannot accept this part of the Plaintiff’s assertion.

4) Added

Considering the various circumstances revealed in the oral argument in this case, the plaintiff seems to have no plan to complete regular school curriculum in elementary and secondary education, and the plaintiff's success in the examination of high school graduates after the date of closing argument in the trial was reported to the press. Based on the recognition of a certain early academic background within the framework of the current educational system, it is naturally possible for the plaintiff to enter higher education institutions or select any occupation on the basis of the recognition of a certain academic background within the framework of the current educational system, and if the academic achievement is excellent like the plaintiff, the necessity thereof is also recognized. However, the plaintiff's attempt to obtain academic achievement through the method of denying the basis of the compulsory education system cannot be recognized in light

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance with different conclusions is unfair, and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Shin Jae-sop (Presiding Judge)