2. All of the plaintiffs' claims are dismissed.

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

The Defendant shall pay the Plaintiff’s National Cancer Academy KRW 51,585,350 to the Plaintiff’s Educational Foundation, KRW 23,92,00 to the Private Teaching Institutes for the Plaintiff’s Educational Foundation, KRW 23,00,00 to the Private Teaching Institutes for the Plaintiff’s Educational Foundation, KRW 32,825,825,00 to the Private Teaching Institutes for the Plaintiff’s Egyption, KRW 44,419,80 to the Seoul Educational Institute for the Plaintiff’s Educational Foundation, KRW 25,67,00 to the Private Teaching Institutes for the Plaintiff’s Educational Foundation, and KRW 20% interest per annum from October 9, 201 to the full payment date.

2. Purport of appeal

The same shall apply to the order.

The reasons why this Court shall be used with respect to this case are the corresponding part of the judgment of the court of first instance (the fourth to the fourth second part). It shall be cited in accordance with Article 8(2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act.

2. The assertion and judgment

A. The plaintiffs' assertion

(1) Pension charges and health insurance premiums shall be borne by the defendant pursuant to Article 37 (1) of the Local Education Autonomy Act (hereinafter referred to as the "Local Education Autonomy Act") and Article 11 (1) of the Local Education Subsidy Act.

(2) A local government which is obligated to expand and carry out compulsory education facilities shall pay the expenses incurred in relation to compulsory education by applying mutatis mutandis the delegation provisions under the Civil Act to the plaintiffs who are the private school corporations entrusted with compulsory education.

B. The defense prior to the Defendant’s merits

1) Defendant’s assertion

Since the relevant provisions such as the Local Education Autonomy Act are merely a declaration provision, the plaintiffs are not allowed to file a lawsuit seeking a performance judgment or a judgment seeking a performance judgment which orders an administrative agency to take a certain administrative disposition under the current Administrative Litigation Act, without any specific public right that can claim the grant of the subsidy of this case based on the above provision, etc.

2) Determination

The Plaintiffs’ assertion has the right to claim the payment of subsidies equivalent to the amount stated in the purport of the claim (hereinafter “the instant subsidy”). Whether the Plaintiffs have the right to claim the instant subsidy under public law is a matter to be determined within the relevant party’s lawsuit. The Plaintiffs are not seeking a performance judgment or formation judgment that requires an administrative disposition to be issued through an appeal litigation. The defense prior to the merits is without merit.

C. Judgment on the merits

1) Relevant statutes

It is as shown in the attached Form.

2) Determination

A) Relevant provisions on the burden of compulsory education expenses and free of charge

(1) Article 31(3) of the Constitution provides that “Compulsory education shall be provided free of charge,” and Article 8(1) of the Framework Act on Education provides that compulsory education shall be three years for secondary education. Article 12(2) and (3) of the Elementary and Secondary Education Act provides that a local government shall establish and manage a middle school necessary to send all persons subject to compulsory education in its jurisdiction to a local government, and where it is difficult, a private middle school may provide education for some persons subject to compulsory education by entrusting it to a private middle school (hereinafter “private middle school”).

Article 37(1) of the Local Education Autonomy Act provides that the fees for teachers engaged in compulsory education and other expenses related to compulsory education shall be borne by the State and local governments under the conditions as prescribed by the Local Education Subsidy Act. According to Article 11(1) of the Local Education Subsidy Act, the expenses for City/Do education and arts shall be borne by the special account for educational expenses of the relevant local government, but the expenses for compulsory education shall be covered by the subsidies from the National Treasury out of the financial resources for the special account for educational expenses of the relevant local government and the funds transferred from the general account of the relevant local government. The procedures and standards for granting all or part of the financial resources necessary for the establishment and operation of the educational institution

(2) Article 31(3) of the Constitution on compulsory education provides that the right to receive education shall be more effective, and it does not mean that compulsory education expenses should be resolved solely by the budget of the State or a local government, i.e., tax, in order to transfer the compulsory education expenses directly borne by the respective guardians of the school-aged children to the community (see Constitutional Court Order 2007HunGa1, Sept. 25, 2008). Article 31(4) of the Constitution provides that education autonomy, speciality, and political neutrality shall be guaranteed as prescribed by Acts. Article 31(6) provides that “The education system, its operation, and education finance system shall be delegated to the legislative person except as otherwise provided by the Constitution.” As long as the education-related system is delegated to the legislative person, the legislative person can choose education-related policies, such as the central government and local governments, the level of financial situation, and the level of educational education policies, referring to 201Hun-Ga20, supra.

In accordance with the principle of free compulsory education, a person subject to education or his/her guardian is not required to bear the expenses of compulsory education, but should determine the final obligor of compulsory education by taking into account the various factors and circumstances such as the financial status of education, level of compulsory education, and the educational institution in charge of the actual compulsory education. Therefore, the conclusion that the educational institution entrusted with compulsory education under the principle of free compulsory education can claim all the expenses of compulsory education to the State or the local government.

B) Whether the final obligor is the Defendant of the pension charges and health insurance charges

The former part of Article 47(1) of the Pension for Private School Teachers and Staff Act provides that a school operation institution shall bear the corporate contributions for private school teachers and staff. Article 3 subparag. 2 (c) and Article 67(1) of the National Health Insurance Act also provides that a person who establishes and operates a private school shall bear a certain portion of health insurance premiums. Thus, the plaintiffs who establish and operate a private middle school shall bear the first-lane pension charges and health insurance fees in relation to the Korea Teachers

Even if pension charges and health insurance premiums constitute expenses related to compulsory education as prescribed by Article 37 (1) of the Local Education Autonomy Act, they shall not be finally borne by local governments in light of the following points:

① Article 37(1) of the Local Education Autonomy Act provides that the State and local governments shall bear all of the remuneration for teachers engaged in compulsory education and other expenses related to compulsory education under the conditions as prescribed by the Local Education Subsidy Act, but does not provide that the local government shall bear all of the expenses. However, the current Local Education Subsidy Act only provides the procedure and standards for granting the State all or part of the financial resources necessary for establishing and operating educational institutions (Article 11(1)), and does not provide the final subject of compulsory education expenses as local governments.

② Article 12(3) of the Elementary and Secondary Education Act provides that a local government may entrust a private middle school to provide education for a part of persons subject to compulsory education, but the meaning of providing entrusted education does not mean that a local government shall pay all the expenses incurred in providing entrusted education to a school foundation that establishes and manages a private middle school (the Plaintiffs also claim that the Defendant should bear the “compensation for teachers engaged in compulsory education and other expenses related to compulsory education” as provided by Article 37(1) of the Local Education Autonomy Act pursuant to Article 11(1) of the Local Education Subsidy Act, and do not claim that the private school should bear the charges for using necessary facilities, equipment, etc. or the cost of considerable opportunity for such education).

③ Articles 45, 46, and 47 of the Pension for Private School Teachers and Staff Act provide that the State, recipient, individual, and three school operations institutions shall bear the burden by taking into account the State’s financial burden and financial difficulties (see Article 43 of the former Act on the Pension of Private School Teachers and Staff, enacted by Act No. 2650, Dec. 20, 1973).

Private school pension system was introduced to establish a social security system corresponding to the teachers working at a national or public school for the employees working at a private school in the purport of the principle of teacher's status. The amount of individual contributions for the private school who is a pension recipient is identical to the teachers and staff of a public school who are public officials. The State has provided social security system corresponding to the teachers and staff of a national or public school for the private school and, in consideration of the fact that the financial resources are difficult to be raised, the State has to share part of the State's contributions to the private school. It is paid by a private school corporation to the Korea Teachers and Staff Pension Foundation as an obligation under the public law (see Article 48 of the Private School Teachers and Staff Act; Constitutional Court Order 2007Hun-Ba13, Jul. 30, 2009). The same purport is also that the National Health Insurance Act also provides that the National Health Insurance Act provides that a person who establishes and operates a private school to which the relevant teachers and staff belong shall bear 30/100 of the amount of contributions (Article 3 and Article 67 (1)

Article 47(1) of the Pension for Private School Teachers and Staff Act provides that the State or a local government may provide subsidies or other subsidies to a school juristic person that has applied for subsidies as prescribed by Presidential Decree or Municipal Ordinance of the relevant local government for the purpose of providing education if deemed necessary for the promotion of education (Article 47(1) of the Pension for Private School Teachers and Staff Act). As can be seen, the current Act and subordinate statutes do not provide for the separate provision on the preservation of expenses for compulsory education, instead of providing for the separate provision on the preservation of expenses for compulsory education, provide the educational expenses to a private school including a private middle school that provides compulsory education. The legislation on the right to receive compulsory education without compensation under the Constitution may directly grant a compulsory education institution the right to claim reimbursement for expenses for compulsory education, but may choose the method of subsidizing subsidies by taking into account various elements and circumstances such as the central government and local government’s financial status, level of compulsory education level, etc., and it belongs to the scope of legislative discretion within the legislative discretion of the legislator.

④ Since the Defendant entrusted the performance of compulsory education to a private middle school pursuant to Article 12(3) of the Elementary and Secondary Education Act and Article 14(1) and (2) of the Enforcement Decree of the same Act, the consignment relationship between the Defendant and the Plaintiffs who establish and operate the private middle school is a public law relationship, and the legal relationship is governed by the relevant provisions, such as the Local Education Autonomy Act, and the delegation clause under the Civil Act concerning the private law does not apply mutatis mutandis to the delegation clause under the Civil Act. The Plaintiffs may not claim against the Defendant the expenses incurred in relation

It is difficult to view the final obligor of corporate charges and health insurance premiums borne by the Plaintiffs as the Defendant. There is no public right to seek reimbursement of the instant subsidy against the Plaintiffs.

C) Whether a pension charge and health insurance premium are subject to a specific claim

Even if the plaintiff is the defendant, it does not have the right of recourse as a specific claim against the pension charges and health insurance premiums for the following reasons even though the plaintiff is the defendant under the relevant provisions, such as Article 37 (1) of the Local Education Autonomy Act and Article 11 (1) of the Local Education Subsidy Act.

① Article 37(1) of the Local Education Autonomy Act provides that expenses related to compulsory education shall be borne by a local government, etc. under the conditions as prescribed by the Local Education Subsidy Act, and does not provide that a school foundation which establishes and operates a private middle school may claim reimbursement of expenses related to compulsory education. Article 37(1) of the Local Education Autonomy Act is difficult to deem that a school foundation may directly claim reimbursement of expenses related to compulsory education pursuant to this provision in light of the form of the provision or the abstractness of the relevant statute. Rather, it is reasonable to interpret this provision as the provision that declares that the State and the local government shall assume the responsibility for compulsory education expenses in accordance with the constitutional ideology, which is compulsory education.

② Article 43(1) of the Private School Act provides that local governments shall compensate for expenses, etc. for school foundations that establish and operate private schools, including private middle schools, by providing financial defective subsidies, etc.

3. Conclusion

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

[Attachment Omission of Related Acts]

Judges Kim Jong-dae (Presiding Judge)

1) The expenses related to education other than compulsory education shall be covered by the subsidies from the financial resources of the special account for educational expenses, and the funds transferred from the general account under paragraph 2, tuition fees, and entrance fees, etc.