Case on Provisions on School Closure Order and School Juristic Person Dissolution Order

[2016Hun-Ba217, December 27, 2018] * First Draft

In this case, the Court held that Article 62 Section 1 Items 1 and 2 of the former Higher Education Act, which provide that the Minister of Education, Science, and Technology may order a school to close down where it is impractical for that school to manage normal school affairs, and Article 47 Section 1 Item 2 of the former Private School Act, which provides that the Minister of Education, Science, and Technology may order a school juristic person to dissolve itself if it is impossible for that school juristic person to achieve its objectives, do not violate the principles of clarity and proportionality, and thus are not in violation of the Constitution.

Background of the Case

The complainants were chief director and director of OO Educational Foundation, a school juristic person that established and operated △△ School. On August 1, 2011, the Minister of Education, Science, and Technology issued a correction order requiring OO Educational Foundation to remedy its violations of the education-related Acts and subordinate statutes, including improper management of school affairs. OO Educational Foundation, however, failed to substantially remedy such violations. Consequently, on December 16, 2011, the Minister of Education, Science, and Technology issued two orders directing the closure of △△ School and the dissolution of OO Educational Foundation. Thereafter, the complainants filed a lawsuit to seek revocation of the aforementioned closure and dissolution orders, but their case was dismissed by the trial court and their appeals were also dismissed by the appellate court and the Supreme Court. While their case was pending before the Supreme Court, the complainants filed a motion to request the constitutional review of Article 62 Section 1 of the former Higher Education Act and Article 47 of the former Private School Act, which provided grounds for the orders for school closure and for dissolution of school juristic person, respectively. When their motion was denied, the complainants moved to file this constitutional complaint on June 2, 2016.

Subject Matters of Review

The subject matters of review in this case are whether Article 62 Section 1 Items 1 and 2 of the former Higher Education Act (amended by Act No. 10866 on July 21, 2011, and before amendment by Act No. 11690 on March 23, 2013) (“the Closure Order Provisions”) and Article 47 Section 1 Item 2 of the former Private School Act (amended by Act No. 8852 on February 29, 2008, and before amendment by Act No. 11690 on March 23, 2013) (“the Dissolution Order Provision”) violate the Constitution. The aforesaid provisions at issue read as follows:

Provisions at Issue

The former Higher Education Act (amended by Act No. 10866 on July 21, 2011, and before amendment by Act No. 11690 on March 23, 2013)

Article 62 (Closing of Schools, etc.) (1) Where it is impractical for a school to manage normal school affairs as it falls under any of the following subparagraphs, the Minister of Education, Science and Technology may order the relevant school foundation to close it down:

1. Where the head, founder, or operator of a school violates this Act or any order issued under this Act intentionally or by gross negligence;

2. Where the head, founder or operator of a school repeatedly violates this Act or any order issued by the Minister of Education, Science and Technology under other education-related Acts and subordinate statutes;

The former Private School Act (amended by February 29, 2008, by Act No. 8852 and before amendment by Act No. 11690 on March 23, 2013)

Article 47 (Order of Dissolution) (1) If the Minister of Education, Science and Technology deems that a school juristic person falls under any of the following subparagraphs, he/she may order the school juristic person concerned to dissolve itself:

2. If it is impossible for the school juristic person to achieve its objectives.

Summary of the Decision

1. Whether the Provisions at Issue Violate the Principle of Clarity

(1) The Closure Order Provisions

Although the Closure Order Provisions do not specifically enumerate occasions when a school is subject to closure, the language of the Closure Order Provisions, including “the head, founder, or operator of a school,” “where it is impractical for a school to manage normal school affairs,” “order,” or “repeatedly,” can reasonably be construed in light of their relevant provisions.

Accordingly, the Court concludes that the Closure Order Provisions do not violate the principle of clarity.

(2) The Dissolution Order Provision

The Dissolution Order Provision reads: “If it is impossible for the school juristic person to achieve its objectives,” and this refers to the circumstances in which it is impossible for the school juristic person concerned to continue to operate a private school. Whether the circumstances of the school juristic person concerned fall within the scope of the Dissolution Order Provision should be determined by considering various factors, such as the objectives of, and financial and operational status of, that juristic person; the causes leading to the failure of that juristic person in school operation; and the possibility of remedying that failure. In this regard, the Court observes that the Dissolution Order Provision has to be written in language that was somewhat broad in scope so as to encompass various circumstances. Although the Dissolution Order Provision employs the language, “If it is impossible for the school juristic person to achieve its objectives,” the specific content thereof can reasonably be read under normal rules of construction.

Accordingly, the Court concludes that the Dissolution Order Provision does not violate the principle of clarity.

2. Whether the Provisions at Issue Violate the Principle of Proportionality

(1) The Closure Order Provisions

The ultimate purpose of the Closure Order Provisions is to ensure that private schools provide quality education to students. To fulfill that purpose, the Closure Order Provisions require private schools to comply with the Higher Education Act and other education-related statutes in managing school affairs, thereby ensuring minimum standards of educational quality in private schools.

The Court sees that a private school that has reached a point where it is absolutely incapable of managing normal school affairs has no reason to exist, and that the continued existence of such a school would create more havoc in society than the closing thereof. The Court also notes that the closure order can be issued under the Closure Order Provisions only if the violation committed by that school is serious enough to completely disrupt the management of normal school affairs and only after a hearing regarding the issuance thereof has been held.

Moreover, the Court finds that the public interest in protecting the citizens’ right to education to be served by the closing of a private school under the Closure Order Provisions is no less significant than the disadvantages to the school juristic person and other parties concerned which may result from such closing.

Accordingly, the Court concludes that the Closure Order Provisions do not violate the principle of proportionality.

(2) The Dissolution Order Provision

The purpose of the Dissolution Order Provision is to maintain a consistent quality of general education. To fulfill that purpose, the Dissolution Order Provision requires a school juristic person to achieve its objectives of establishing and operating private

schools, and prevents an incompetent school juristic person from establishing a private school and managing it improperly.

The fact that a school juristic person is absolutely incapable of achieving the aforementioned objectives is, by itself, sufficient to support the conclusion that that juristic person has no reason to exist. Such a conclusion is justified especially in light of the fact that the State provides considerable financial support and various other benefits, as well as guidance and supervision, to private schools which function as part of the public system of education, in order to ensure that they fulfill their function and objectives. For these reasons, the Court finds that a school juristic person that is absolutely incapable of achieving its objectives needs to be dissolved through lawful procedure, and that it is socially undesirable to allow that juristic person to continue to exist. The Court also notes that the order of dissolution is the ultimate sanction which should be imposed only on the school juristic person who has not corrected its violations and has thereby failed to achieve and maintain its objective despite being given the opportunity to do so, and that such an order cannot be issued unless a hearing regarding the issuance thereof has been held.

Moreover, the Court finds that the public interest in dissolving a school juristic person to be served under the Dissolution Order Provision is no less significant than the disadvantages to that juristic person which may result from such dissolution.

Accordingly, the Court concludes that the Dissolution Order Provision does not violate the principle of proportionality.

* This translation is provisional and subject to revision