[2] The case holding that Article 14 subparagraph 2 of the former Enforcement Decree of the Elementary and Secondary Education Act cannot be deemed to have exceeded the scope of delegation under Article 96 (2) of the former Enforcement Decree of the Elementary and Secondary Education Act, in case where: (a) the superintendent of a Si/Gun/Gu publicly announced an implementation plan for the qualification examination for middle school for persons aged 12 or older based on the “Rules for the qualification for middle school”; and (b) Party A, who was 9 years old since attending an elementary school and was under obligation to attend school and was subject to disposition after submitting an application for the examination and was rejected

[2] The case holding that Article 14 subparagraph 2 of the former Enforcement Decree of the Elementary and Secondary Education Act (amended by Presidential Decree No. 11219, Jan. 26, 2012; Presidential Decree No. 24148, Oct. 29, 2012; Presidential Decree No. 2014, Oct. 29, 2012; Presidential Decree No. 2020, Nov. 26, 2012; Presidential Decree No. 20144, Nov. 29, 2016; Presidential Decree No. 2020, Nov. 26, 2012; Presidential Decree No. 20220, Feb. 29, 2011; Presidential Decree No. 2020, Feb. 26, 2012; Presidential Decree No. 20220, Feb. 3, 201).

1. As to whether the application age limitation provision of the "Rules on Examination for Admission to Middle Schools in Daejeon Metropolitan City" is null and void beyond the delegation limit of higher law

The Enforcement Decree or the Enforcement Rule of the Act, unless otherwise delegated by the Act, cannot modify or supplement the contents of rights and obligations of an individual or determine new contents that are not provided by the Act. However, the Enforcement Rule or the Enforcement Rule of the Act merely provides for the possibility of interpreting the parent law by systematically and systematically examining the legislative purport of the parent law and the entire provisions related thereto, or where it is intended to embody them based on the purport of the provisions of the mother law, it shall not be deemed beyond the scope of the parent law’s regulation. Thus, even if the parent law does not directly delegate the provisions thereof, it shall not be deemed null and void (see Supreme Court Decision 2008Du13637, Jun. 11, 2009). This legal doctrine applies to the relationship between the Educational Rules enacted by the Superintendent of an Office of Education of a local government

Article 43(1) of the former Elementary and Secondary Education Act (amended by Act No. 11219, Jan. 26, 2012; hereinafter the same) provides that “Any person who may enter a middle school shall be a graduate from an elementary school or a person recognized as having equivalent or higher academic background pursuant to statutes.” Article 96(1)1 of the former Enforcement Decree of the Elementary and Secondary Education Act (amended by Presidential Decree No. 24148, Oct. 29, 2012; hereinafter “Enforcement Decree”) provides that “any person who has passed an examination for entrance to a middle school (hereinafter “the examination for entrance”) shall be deemed to have the same academic background as an elementary school graduate. Article 43(2) of the former Elementary and Secondary Education Act provides that “Any person who has passed an examination for entrance to a middle school (hereinafter “the examination for entrance to a middle school”) shall delegate the examination for entrance to the City/Do educational Rules on matters necessary for the examination for entrance to which he/she is at least the age of 20 days.”

(4) In light of the above legal principles, since the examination of middle school requires a certain qualification requirement to apply for such examination, it can be deemed that the restriction on qualifications for applying for such examination belongs to “necessary matters concerning the examination of middle school” under Article 96(2) of the Enforcement Decree. (2) All citizens are obliged to have the children under their care undergo the elementary school education pursuant to Article 31(2) of the Constitution. Article 13(1) of the former Elementary and Secondary Education Act provides that, in principle, all children or children under their care undergo the examination of their care from March 1 of the year following the year in which they reach the age of 6 until the end of February of the year in which they reach the age of 12; (3) The former Elementary and Secondary Education Act provides that children or children under their care be exempted from the duty of school attendance to attend an elementary school without any justifiable reason or reason, and thus, the head of the school may still be exempted from the duty of school attendance and public notice to the extent that they can still be exempted from the duty of school attendance due to an inevitable reason or absence.

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to whether subordinate statutes exceeded the delegation scope of higher statutes.

2. As to whether the instant provision is null and void because it violates the excessive prohibition principle, etc.

The purpose of the instant provision is to promote the purpose of compulsory education by preventing students from getting out of the middle school and inducing them to complete regular education courses, as well as knowledge transfer to children of the age eligible for elementary school, and to cultivate group life and social adaptation ability, and to realize the purpose of compulsory education through preliminary and ethical education, etc. In addition, it is reasonable to prevent them from evading the duty to attend an elementary school for early promotion of higher school by limiting the age of application for the entrance examination. Thus, the suitability of means to achieve this purpose is also recognized. Even if the grounds for postponement of the duty to attend an elementary school are strict, it is impossible to prevent them from applying for the middle school examination as those who are in need of management beyond the fixed number of school without permission. Considering the fact that students with excellent talent can attend an elementary school after completing an elementary school course in a short time through early promotion and early graduation as provided for in Article 27 of the former Elementary and Secondary Education Act, it is difficult to view that the instant provision violates the principle of equality of interests and interests of the elementary school through early examination and approval methods.

The judgment below to the same purport is just, and there is no error of law by misunderstanding the principles of excessive prohibition or the principles of regulations under the Framework Act on Administrative Regulation.

3. As to whether the instant provision is null and void in violation of the principle of equality

The recognition system of academic background in Korea is, in principle, based on regular school education, and the examination announcement is a supplementary educational background system created by the State to provide the persons who have an opportunity for normal education to supplement the academic background. The State has a wide range of authority to establish the contents of the examination announcement system, including whether to apply for qualification to those who meet any requirements. Furthermore, as seen earlier, the reason for limiting the age of application like the provision of this case in the examination announcement is to realize the purpose of elementary school education, which is compulsory education

In light of these circumstances, even if the provision of this case is 13 years old, it cannot be said that there is no discrimination in the minimum age available to a middle school against a student who was enrolled in a middle school at the age of 11 exceptionally pursuant to Article 13(2) of the former Elementary and Secondary Education Act, compared to that of a student who was enrolled in a middle school at the age of 11 through a regular curriculum. However, such discrimination is a result of the limitation on the age for applying for the entrance examination. Thus, even if such discrimination occurred under the provision of this case, it cannot be deemed unreasonable to the extent that such discrimination is in violation of the principle of equality.

The judgment below to the same purport is just, and there is no error of law by misunderstanding the legal principles on the principle of equality.

4. As to whether the provision of this case is null and void because it violates the legal principle of education system.

Article 41 of the former Elementary and Secondary Education Act provides for basic matters concerning the educational system of middle school and its operation, such as the purpose of education (Article 41), the term of school years (Article 42), the qualifications for admission (Article 43), etc. However, Article 43(1) of the former Elementary and Secondary Education Act delegated the scope of “a person who has been recognized as having an equivalent or higher academic background than an elementary school graduate” to the Educational Rules of Cities/Dos.

Article 31(6) of the Constitution does not necessarily mean that the purport of the provision of the basic matters of the education system under Article 31(6) of the Constitution is to stipulate the contents of qualifications for admission to middle schools only in the form of a law, and therefore, it is difficult to view that the above provision is to stipulate the basic matters of qualifications for admission to middle schools and to delegate the details thereof to subordinate statutes, or that the provision of this case, which is the educational rules of local governments, limits the age of application

Therefore, the lower court did not err by misapprehending the legal principles on the legal principle of the education system.

5. 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.

Justices Kim Chang-suk (Presiding Justice)