Collection of School Operation Support Fees from Middle School Students in Compulsory Education

[24-2(A) KCCR 455, 2010Hun‐Ba220, August 23, 2012]

In this case, the Constitutional Court held that Article 30‐2 Section 2 Item 2 of the former Elementary and Secondary Education Act, which sets forth that school operation support fees should be included into school's revenues, in terms of collecting school operation fees from middle school students does not comply with the principle that compulsory education shall be provided at no cost as prescribed inArticle 31 Section 3 of the Constitution and, thus, it is unconstitutional.

Background of the Case

Petitioners, who are the parents of students who attend or have graduated from public or private middle schools, have paid school operation support fees to those schools where their children attend or attended. Arguing that their payment of those support fees is against the principle that compulsory education shall be provided at no cost as prescribed in the Constitution, the petitioners filed with the court a suit for return of the money against the State, the Seoul Metropolis, Gyeonggi‐do, Gyeongsangbuk‐do, Gwangju metropolitan city and Jeollabuk‐do for their unfair profit. That court, however, denied their claim on June 17, 2009 and thereafter the petitioners filed an appeal against that denial.

While the appeal case is pending, the petitioners filed with the court in charge of that appeal case a motion to request that court to file with the Constitutional Court for its constitutional review whether Section 2 Item 2 of Article 30‐2 and Article 32 Section 1 Item 7 of the former Elementary and Secondary Education Act, which set forth that school operation support fees should be included into school's revenues and the school operation committee must discuss the matters

related to creation and operation of those fees, are unconstitutional or not. However, that court denied that motion. Against that denial, the petitioners, on June 4, 2010, filed this constitutional complaint withthe Constitutional Court, arguing that those provisions are unconstitutional.

Provisions at Issue

The question presented to us is whether the collection of school operation fees from middle school students pursuant to Section 2 Item 2 of Article 30‐2 (hereinafter, the 'Instant Revenue Provision') of the former Elementary and Secondary Education Act (revised by Act No. 6209 on January 28, 2000 and before revised by Act No. 11384 on March 21, 2012) and Article 32 Section 1 Item 7 (hereinafter, the 'Instant Deliberation Provision') of the former Elementary and Secondary Education Act (revised by Act No. 6007 on August 31, 1999 and before revised by Act No. 11384 on March 21, 2012) are unconstitutional or not, and the contents of those provisions are as follows:

Former Elementary and Secondary Education Act (revised by Act No. 6209 on January 28, 2000 and before revised by Act No. 11384 on March 21, 2012)

Article 30‐2 (Bearing of Expenses)

(2) School's revenues shall be as follows:

2. School operation support fees under subparagraph 7 of Article 32

Former Elementary and Secondary Education Act (revised by Act No. 6007 on August 31, 1999 and before revised by Act No. 11384 on March 21, 2012)

Article 32 (Duties)

(1)Any school operational committee established in a national school or a public school shall deliberate on the following matters:

7.Matters relating to raising, operation and use of the school operation support fees;

Summary of the Decision

1. Court Opinion

A. Instant Deliberation Provision

The Instant Deliberation Provision just includes the matter regarding creation, operation and use of school operation support funds as one of the matters subject to the deliberation of the school operation committees of national and public middle schools. Thus, the Provision shall not be deemed as a provision of basis for collection of school operation support fees and, thus, it cannot be a statute to be subject matter to the judgment on the instant case. Therefore, we found that the petitioners' claim with respect to the Instant Deliberation Provision fails to meet standing requirements and, thus, it shall be dismissed as invalid.

B. Instant Revenue Provision

(1)As for the claim filed by school parents of private middle schools

The Instant Revenue Provision is applicable only to school operation support fees collected by 'national and public middle schools' but not to those collected by private middle schools. Therefore, we found that the claim filed by school parents of private middle schools fails to meet standing requirements and, thus, it shall be dismissed without prejudice.

(2)As for the claim filed by school parents of public middle schools

The scope of things provided free of charge in terms of compulsory education set forth by Article 31 Section 3 of the Constitution must

be limited to those indispensible for every student to take actual and equal compulsory education with no economic discrimination and the examples can be: exemption of the entrance fee; personnel expenses and maintenance expenses for maintaining human resources and facilities such as teachers and school buildings; exemption of financial burden of funding for new facilities; and other expenses incurred inthe course of providing compulsory education indispensible for securingactual and equal compulsory education.

However, considering the following, we find that the Instant Revenue Provision is not persistent with the principle that compulsory education shall be provided at no cost as prescribed in Article 31 Section 3 of the Constitution and, thus, it is unconstitutional: schooloperation support fees have been used for the expenses for maintaininghuman resources ‐ partial personnel expenses for teachers such as teachers' research expenses and school accounting personnel for compulsory education; although, with respect to school's revenue, school operation support fees are included and classified into the same item with entrance fee and tuition, only those funds are borne by the students and school parents; and, while school operation support fees are basically a sort of donation voluntarily made by school parents in its nature, it is not such in practice especially in terms of the creation and collection of those fees so that those fees appear to be treated as the expenses necessary for basic and indispensible school education.

2. Dissenting Opinion of One Justice

In my view, the Instant Revenue Provision is not a provision of basis for collection of school operation support fees and, thus, it cannot be the statute as subject matter to the judgment on the instant case. Therefore, the petitioners' claim with respect to the Instant Revenue Provision also fails to meet standing requirements and, thus, it shall be dismissed without prejudice.