Extracurricular Lesson BanCase

[12-1 KCCR 427, 98Hun-Ka16, etc.,(consolidated),April 27, 2000]

Contents of the Decision

1. Parents' right to educate children

2. State's responsibility for education

3.Relationship between parents' right to educate children and State'sresponsibility for education

4. Basic rights restricted by Article 3 of the statute

5. The principle of proportionality as the limit of restriction on basic rights

6.Legitimacy of the legislative purpose and appropriateness of means

7. The least restrictive means

8. The balancing of interests

Summary of the Decision

1.Children's nurturing and education are first parents' god-givenrights and their responsibilities at the same time. 'Parents' right toeducate children' is not stated in the Constitution. It, however,arises out of the Article 36(1) guarantee of all people's inviolablehuman rights concerning marriage and family life, the Article 10guarantee of the right to pursue happiness, and the Article 37(1)which mandates that 'people's liberties and rights shall not be dis-respected for not being enumerated in the Constitution.' Parentshave rights to make an overall plan on their children's education andconfigure the education according to their own view of life, society,and education, and parents' right of education take precedence overother providers of education.

2. Article 31(1) of the Constitution states 'All citizens haverightsto receive equal education according to their merits', guaran-teeing people's right to education. 'Rights to receive education'means the State's responsibility to prepare facilities and systemsnecessary for making such equal education possible and to formulatean affirmative policy of providing substantively equal education to thesocially and economically weak. Item 6 of the same Article statesthat the basic matters about school education, life-time education, andall other educational institutions, the management and finance thereof,and the status of teachers shall be specified by statute, specifyingthe State's power and responsibility in school education. The aboveprovision delegated to the

State the operation of school education,and thereby granted comprehensive regulatory power over schoolsand the responsibility for children's school education.

3. Parents' right of education in children's nurturing andeduca- tionare to be respected in all areas of education. Nonetheless, in the area of school education, the State was granted by Article 31 of the Constitution an authority over education independent in principle from parents' right of education. The State shares with parents theresponsibility for children's education in that area. Outside that area,parents' right of education take precedence over the State's.

4. Article 3 of the Act restricts the learning children's andjuvenile's right to free development of personality, parents' right to educate children, and the occupational freedom and the right to pur- sue happiness of the person who wishes to provide extracurricular lessons.

5. Article 3 of the Act, in banning extracurricular lessons, raises a constitutional issue of drawing the boundaries between children's right to free development of personality and parents' right of edu- cation on one hand, and the State's responsibility for education, i.e., to what extent the State can restrict children's right to free devel- opment of personality and parents' right to educate children in the area of private education. As to school education, the State has a broad authority in shaping the educational system. In such areas ofprivate education as extracurricular lessons, the State's regulationshould be limited by the respect due children's right to free devel-opment of personality and parents' right of education, and shouldabide by the principle of proportionality, the mandates of the rule of law.

6. A. In private education, our society unfortunately lost self- correcting or self-controlling capacity. The State must intervene.In this exceptional loss of societal self-regulation, the legislativepurpose of Article 3, namely preventing high-expenditure extracur-ricular lessons and thereby lessening parents' burden in privateeducation due to over-heated competition and providing all peoplewith private education as equal as possible, is a legitimate purpose that the legislature may pursue 'provisionally.'

B. From the perspective of appropriateness of means, Article 3allows extracurricular lessons through private teaching institutes,lesson halls, and college (graduate) students but otherwise adopted acomprehensive ban of all private forms of extracurricular lessonswith the possibility of high-expenditure extracurricular lessons. It is unquestionable that such means contributes to the accomplishment of the legislative purpose. Article 3 is appropriate as the means.

7. Article 3 adopts the inversed regulatory approach of 'overall prohibition and exceptional permission' on the conduct that actuallyshould

be protected as the rule and prohibited only in exceptions.Also, the prohibition in Article 3 includes for regulatory conveniencemany types of conduct that do not seem necessary to be includedfor the accomplishment of the legislative purpose. The regulatory means chosen by the legislature is not the least restrictive and un- avoidable means for to accomplish the legislative intent.

8. The regulation of private education in Article 3 goes beyond the private dimension of substantially infringing on the basic rightsof parents and children in private education but gentrifying the Stateculturally. Cultural poverty in this age of unlimited competitionamong states for survival will ultimately lead to social and economicbackwardness. There is a question as the effectiveness of Article 3in the accomplishment of the legislative purpose, one hand, andArticle 3 produces substantial restrictive impact on basic rights and substantial disadvantages in the accomplishment of a cultural state, on the other. Therefore, Article 3 departs widely from a reasonable relationship of proportionality between the public interest obtainedthrough the restriction and the restrictive impact caused by therestriction, and therefore violates the balance of interests.

Justice Han Dae-hyun's Dissenting Opinion

This statutory provision excessively and unconstitutionally re-stricts people's basic rights, I agree. However, the reality demandsthat we should not emancipate extracurricular lessons entirely but maintain partial restriction. Therefore, we should not immediatelyinvalidate this statutory provision but should find it nonconformingto the Constitution, allowing the legislature to formulate a newmethod to eliminate the evils of extracurricular lessons while re-stricting people's basic rights as little as possible.

Justice Chung Kyung-sik's Dissenting Opinion

This statutory provision has a legitimate legislative purpose, andthe regulation is admittedly necessary. The unconstitutionality ofthis statutory provision arises out of its insufficiency in system and method as a statute restricting basic rights. In the current situation where the evils of extracurricular lessons are still serious and needto be regulated, the invalidation of this statutory provision and theresulting all-out emancipation of extracurricular lessons does notrealize a constitutional state of affairs. We should not immediatelyinvalidate this statutory provision through a simple decision of un- constitutionality. Far more desirably, we should allow the legis-lature to find a reasonable method to regulate extracurricular lessonsby forming a comprehensive,

nation-wide consensus and in the meantime avoid the entire regulatory vacuum in extracurricularlessons by holding the statutory provision provisionally effective ona decision of nonconformity to the Constitution.

Justice Lee Young-mo's Dissenting Opinion

Extracurricular lessons constitute supplementary education ap-pended to school education. When it threatens the public value ofschool education, the State has discretion to regulate it to restorethe normalcy in school education. Then, the standard of constitu-tional review is the reasonableness of legislative formation.

The majority opinion finds that the ban is also applied againstrelatives' or neighbor housewives' lessons and prominent artists'private lessons and therefore violates the principle of proportionality. However, the permission of such lessons undermines the chances ofachieving legislative purpose because the lessons are taken up behindclosed doors and may threaten the public value of school education.Given the public interest obtained by the ban on extracurricularlessons, their inability to provide extracurricular lessons and the re- sulting losses to them do not disturb the balance among competinginterests. The ban on extracurricular lessons to elementary schoolstudents on the school subjects is justified because the lessons maycause undesirable impact on the students, physically, emotionally,and educationally.

Therefore, this statutory provision is a legislative attempt at aharmony between school education, the common tasks for the State and parents, on one hand, and extracurricular lessons, the sole ju-risdiction of the parents, on the other. It is not unreasonable assuch.

This statutory provision does adopt the regulatory method ofprohibiting as the rule and permitting only in exceptions. However,this statutory provision permits those extracurricular lessons thatsufficiently supplement the academically challenged students, andbans only those private extracurricular lessons that are substantially likely to cause social evils and side-effects.

Therefore, this statutory provision has a legitimate legislativepurpose and is appropriate as means. It does not infringe on theessential content of basic rights of lesson providers, parents, andlesson receivers. It is constitutional.

Parties

Requesting Court

Seoul District Court (98Hun-Ga16)

Original Case

Seoul District Court 98Go-Dan7799, a violation of the Act on theEstablishment and Operation of Private Teaching Institutes

Petitioner (98Hun-Ma429)

Kim Yong-jin and four others

Counsel of record: Chung Ki-seung, and one other

Holding

Article 3 and 22(1)[1] of the Act on the Establishment andOperation of Private Teaching Institutes (Wholly Amended by ActNo. 4964 on August 4, 1995) is unconstitutional.

Reasoning

1. Introduction of the Cases and the Subject Matters for Review

A. Introduction of the Cases

(1) 98Hun-Ga16

Yi Eung-sun, was indicted at the Seoul District Court for a vio-lation of the Act on the Establishment and Operation of PrivateTeaching Institutes (98Go-Dan7799). The main content of the indict-ment is that 'Defendant, the representative of 'Hanoori Education'set up a communication service community, called 'Hanoori Bang' inChollian and Miraetel, the communication services providers, receivedthe enrollment of 2,415 members in that website, provided extra-curricular lessons by giving several thousands of tests followed byquestions and answers, and received about 374 million wons betweenearly December 1995 and October 16, 1997. Also, between earlyJuly 1997 and October of the same year, Defendant had the instruc-tors Park Choong-man and others visit those fee-paying membersfor extracurricular lessons. Defendant thereby violated Articles22(1)[1] and 3 of the statute.'

On November 10, 1998, the above court made a finding of sus-picion that the statutory provisions to be applied against Yi Eung-sun and

others, namely Articles 22(1)[1] and 3, may be unconstitu- tional, and requested constitutional reviewsua sponte.

(2) 98Hun-Ma429

Complainants are professional musicians. Complainant KimYong-jin majoring in composition is a professoremeritusat theMusic School of Seoul National University and the chairman of theboard of Korean Music Society, Inc. (a corporation). ComplainantShin Soo-jung majoring in piano, is the Dean of the Faculty of Musicat Kyungwon University. Complainant Park Soo-gil, majoring invocal, is a professor of the Faculty of Music at Hanyang Universityand the president of the National Opera Company of Korea. Com-plainant Yi Jong-yong, majoring in cello, is a professor of theFaculty of Music at Kyunghee University and the representative director of the Beehouse Cello Ensemble. Complainant Kim Min,majoring in violin, is a professor of the Faculty of Music at Seoul National University and the representative director of the BaroqueChamber Orchestra.

Complainants filed this constitutional complaint against Article 3 of the Act on the Establishment and Operation of Private TeachingInstitutes that banned them from giving lessons to musically talentedchildren and Article 22(1)[1] that punished such conduct, allegingthat the statutory provisions infringe on their basic rights.

B. Subject Matter for Review

Therefore, the subject matter for review in this case is whetherArticles 3 and 22(1)[1] of the Act on the Establishment and Operationof Private Teaching Institutes (those provisions after overall revisionby Act No. 4964 on 1995. 8. 4; 'Statute' hereinafter, and 'StatutoryProvisions' hereinafter) violate the Constitution, and the statutoryprovisions and related provisions are as follows:

Article 3 (Extracurricular Lessons)

No person shall provide extracurricular lessons:Provided,Thatthis shall not apply where he falls under each of the following sub- para-graphs:

1. Where he teaches techniques, arts or subjects as deter-mined by the Presidential Decree at a private teaching instituteor teaching school;

2. Where he teaches persons who prepare themselves for anexamination for admission into high schools, universities orschools equivalent thereto, or for qualification on certificationof academic attainments at a private teaching institute.

3.Where a student (including graduate student) enrolled in a university, college, teachers college, college of education, juniorcollege, air and correspondence college, open college or univer-sity established by a separate Act and school equivalent there-to, teaches.

※ "Technical college" was inserted into Number 3 by ActNo. 5272 on 1997. 1. 13 and “provided that lessons given tostudents enrolled in middle and high schools or the equivalents thereof shall be limited to the period set by the Minister of Education” was deleted from the latter half of Number 2 of Act No. 5634 on 1999. 1. 18.

Each of the above revisions does not cause substantial changes.The subject matter for review includes all versions after 1999. 1. 18including the current one. Therefore, the subject matter for reviewis thestatute after the overall revision by Act No. 4964 on 1995. 8. 4.

Article 22 (Penal Provisions)

(1) A person who falls under any of the following subpara-graphs shall be pun-ished by imprisonment for not more than 1 year or a fine not ex-ceeding 3 million won:

1. A person who teaches in violation of Article 3;

2. - 3. [omitted]

(2) [omitted]

Article 2 (Definitions)

The definitions of terms as used in this Act shall be as follows.

1. The term “private teaching institute” means facilities inwhich a private person teaches learners, greater in number thanthose as determined by the Presidential Decree, knowledge,techniques (including skills; hereinafter the same shall apply)and arts with a teaching curricula of not less than 30 days(including where the number of teaching days is not less than30 days by repeating the curricula; hereinafter the same shallapply) or which are provided as learning places for not lessthan 30 days, and which do not fall under each of the fol-lowing items:

(a) Schools referred to in the Education Act or other Acts and subor-dinate statutes;

(b) Libraries and museums;

(c) Facilities such as working places, which are used fortraining em-ployees attached to them;

(d) Social educational facilities established pursuant toArticle 21 of the Social Education Act;

(e) Facilities attached to a school pursuant to Article 26of the Social Education Act; and

(f) Vocational training facilities referred to in the Frame- work Act on Vocational Training or facilities established by other Acts on social education.

2. The term “teaching school” means a facility which carriesout extracurricular teaching referred to in subparagraph 1 ofArticle 3, and which is not a private teaching institute.

3. The term “extracurricular lessons” means activity whichteaches stu-dents of elementary schools, middle schools, highschools or schools equivalent thereto or persons preparingthemselves for an examination for school admission or qualifi-cation on certification of academic attainments;Provided,Thatactivities which fall under any of the following items shall be excluded;

(a) Teaching activity carried out in accordance with thepurpose of establishment in the facilities referred to in each item of sub-paragraph 1 above;

(b) Teaching activity carried out by any relative of thesame family register; and

(c)Teaching activity which belongs to a voluntary serviceas determined by the Presidential Decree.

4.The term “learner” means a person who takes lessons at aprivate teaching institute or teaching school or uses a facilitywhich is provided as a learning place for not less than 30 days.

Act on the Establishment and Operation of Private TeachingInstitutes Enforcement Decree

Article 2 (Definitions)

(1) [omitted]

(2)"Greater than the number determined by Presidential Decree" in Article 2[1] of the Act means when the number of students whocan receive instruction or use the space for instruction simultane-ously is greater than ten (two for practical training of the privateteaching institutes for automobile driving).

Article 3 (teaching activities not falling under extracurricularlessons)

(1) [omitted]

(2) "Subjects determined by Presidential Decree" in Article 3[1]of the Act means those subjects not included in elementary, middle, and high school curricular.

2.Reasons for Requesting Constitutional Review, Complain-

ants' Arguments, and the Opinions of the Related

Agencies

A. Reasons for Requesting Constitutional Review

This statutory provision restricts the freedom of arts and science(the Constitution, Article 22(1)), the right to receive education(Article 31(1)), occupational freedom (Article 15), and the right topursue happiness (Article 10). In doing so, this statutory provisiondoes not limit the restriction on basic rights to those exceptionally pathological situations as extracurricular lessons given by incumbentteachers. To the contrary, it bans and criminally punishes allextracurricular lessons as the rule and allows as lawful only thoseextracurricular lessons that fall under exceptions. As a result, evendesirable extracurricular lessons above criticisms were treated ascrimes unless they fell under the defined exceptions. It violates the rule against excessive restriction in Article 37(2) of the Constitution and the essential content of basic rights.

The State must encourage and protect teaching and learning asmuch in private domain as in public domain. This statutory pro- vision bans private teaching and learning as a matter of principle, and the State by this statutory provision, plays the role of an op-pressor, not a defender of private education. Forfeiting private edu- cation for the purpose of remedying such social diseases as arisingout extracurricular lessons becomes a significant obstacle to people'sdevelopment of faculties in the age of unlimited competition. It is contrary to the ideology of a cultural state, and is based on a phi- losophy unacceptable to a free democratic state. It is also contraryto the spirit of the preamble of the Constitution: To afford equal opportunities to every person and provide for the fullest develop-ment of individual capabilities in all fields, including political, social and cultural life by further strengthening the basic free and democ- ratic order conducive to private initiative and public harmony.

B. Arguments of Complainants

(1) Legal Prerequisites

Complainants, who were about to give lessons to students upontheir request in October 1998, realized that this statutory provisiondoes not allow them to do so without a violation of law, and filed this constitutional complaint. The legal prerequisites are in place,and the filing time limit was not passed.

(2) Review on Merits

(A) This statutory provision violates the complainants' right topursue happiness (the Constitution, Article 10) and freedom of artsand sciences (Article 22(1)) in violation of Article 37(2) of the Constitution, and is also contrary to the constitutional provisionconcerning the right to receive education (Article 31(1)) and thepublic-interest-oriented nature of the exercise of a property rightunder Article 23.

(B) It is not just to condemn as illegal an decision to expend one's own time, money, and effort to obtain knowledge and ideas.A ban on the pursuit for excellence through private education outsideschool education violates the Article 10 right to pursue happiness in the Constitution. An overall ban of private education outside formaleducation in this statutory provision will pull backward our countryin today's global competition for knowledge and culture. There isno reasonable cause to limit the place of learning to private teachinginstitutes, lesson halls, and other places defined by statutes. It isagainst constitutional ideology for the State to regulate the place andqualifications for learning and thereby manipulate people's develop-ment of knowledge and arts.

(C) As long as this statutory provision is in place, apprentice-ship is impossible in this country. We cannot produce a good playerof instrument. Koreans who would like to become a professionalmusician will have to go overseas.

(D)It has not been proven that more investment in a child leadsto greater capacities of that child. Although an inequality results therefrom, it is not just to eliminate the inequality by banning all forms of learning outside schools, private teaching institutes, andlesson halls. The isolated incidents of high-expenditure extracur-ricular lessons cannot be generalized that they cause the bankruptcy of family economy or obstruct children's normal growth. No argu- ment can justify that the State, as a method of price control, banslessons and standardize schools, private teaching institutes and lessonhalls.

(E) Admission fraud, professors' disloyalty to their main profes- sion, unjust enrichment exploiting others' helplessness, and tax eva- sion should be remedied by the improvement on admission processesand the establishment of the rule of law through strict punishmentand regulation. It is putting a cart before the horse to sacrifice thepursuit for excellence and the freedom of teaching and learning forthe purpose of preventing these evils.

(F) Parents' right to education their children and teachers' rightto teach them is the most peaceful of all liberties because it doesnot conflict with any other person's freedom. This statutory provi-sion

constitutes a case of abusive equality that attacks freedom toteach and learn and freedom to nurture arts to an extent unheard of, and is unconstitutional.

C. Opinion of the Minister of Education

(1) Legal Prerequisites

(A) Filing Time Limit

This statutory provision is the result of overall revision of theAct on Private Institutes on August 4, 1995 by Act No. 4964. Thisconstitutional complaint was filed after the filing time limit accruedfrom the effective date of this provision expired.

(B) Directness and Self-relatedness

Complainants are not directly, presently, and themselves infringedtheir basic rights.

Complainants are referring to the possibility of restricting basicrights of gifted children. Such injury does not satisfy the require- ment that the restriction on basic rights be related to the complain- ants themselves.

Complainants are incumbent college professors or professorsemeritus. Their rights to open and maintain private teaching insti- tutes and lesson halls or pursue other profit-oriented activities are regulated by Article 64 of the State Public Officials Act concerningprohibition profit-making activities and the concurrent holding ofoffices and Article 55 of the Private Schools Act which applies theabove to professors and teachers of private schools. They shouldhave first gone through requests for constitutional review or consti- tutional complaints against the above provisions. This constitutionalcomplaint against this statutory provision prior to the above saidprocedures is not legally sufficient.

(2) Review on Merits

(A) The Constitution does not recognize a right to choosebetween school education and home schooling and therefore does not recognize a right to receive one form of home schooling, extracur-ricular lessons. If extracurricular lessons are included in the rightto receive education and permitted as such, discrimination in educa-tional opportunity will result from parents' different economic re-sources. Then, the Article 31(1) right to receive equal educationaccording to merits cannot be guaranteed.

(B) Extracurricular lessons are ineffective yet cause many evils.

They weaken students' independent studying habits and increasetheir dependence. An excessive amount of extracurricular lessonsinterferes with sound physical and mental growth. They heightencompetitive tendencies, interfering with the nurturing of cooperativeand community-oriented tendencies. Extracurricular lessons maketeachers and students inattentive to school education, impoverishingit. Extracurricular lessons injure low income family's budgets andgive rise to a sense of alienation among different social participants.In area of music, extracurricular lessons have been related to ad-mission frauds. This statutory provision was aimed at the elimina- tion of these evils, the sound nurturing of school education, and theestablishment of the rule of law. It is therefore a restriction onfreedom necessary for national security and public order and welfare under Article 37(2) of the Constitution.

(C) Extracurricular lessons banned by the statute are limited tothose lessons by ordinary people (incumbent teachers and privateteaching institutes instructors) that are likely to be expensive or tocause social problems. Supplemental lessons at school, extracurric-ular lessons given by relatives, the same given by college studentsor graduate students, private teaching institutes lectures, lesson hallslessons in arts, are all permitted. The statutory provision does notrestrict basic rights excessively. Extracurricular lessons by house-wives, if allowed, will unavoidably lead to illegal extracurricularlessons by private teaching institutes instructors due to the secret nature of the lessons and the selfishness of parents. In consider-ation of the public interest achieved by the ban, any infringement onthose housewives' interests who cannot give lessons does not destroythe balance among the competing interests. The statutory ban onextracurricular lessons is reasonable as a regulation and does notviolate the rule against excessive restriction.

(D) High-expenditure extracurricular lessons are harmful to themaintenance of societal order and public interest, and violative ofthe principle of equal opportunity in the right to receive education.The ban is in consistent with the preamble of the Constitution thatcalls for 'elimination of all bad social customs and injustices.'

(E) Extracurricular lessons, done in the force-feeding manner,obstructs students' development of problem-solving abilities, thinkingabilities, and creativity. Therefore, the ban on extracurricular lessonsdoes not constitute oppression on private education, obstructs people'sdevelopment of faculties in this international age, or contradicts the ideology of a cultural state.

D. Opinion of the Minister of Justice

Generally similar to that of the Minister of Education

3. Review

A. Review on Legal Prerequisites (98Hun-Ma429)

A constitutional complaint against laws and regulations must befiled within 180 days of the effective date of the law and regula-tions and within 60 days from the day of becoming aware of the lawand regulations being put into effect (the Constitutional Court Act,Article 69(1), Article 68(1)). Those whose basic rights are infringedonlyafterthe laws and regulations are becoming effective when someconditions governed by the laws and regulations arise, also must filewithin 180 days of those relevant conditions coming into being andwithin 60 days of being aware of the relevant conditions cominginto being.

This statutory provision is the result of overall revision of an oldlaw which took place on August 4, 1995 by Act No. 4964 and becameeffective on January 1, 1996. Since the complainants were profes-sional musicians when the laws became effective. An issue is when the governed conditions under the laws and regulations arose.

In determining the starting date of the filing time limit of achallenge against prohibitive and punitive provisions applicable to all people, we do not find that the relevant conditions arise immediatelyupon the effective date of the laws for ordinary people. We findthat the relevant conditions arise only when there is concrete andpresent injury upon the complainants. Only when an injury is certainto take place, we allow the complainant to file a constitutional com-plaintbeforethere is a concrete injury on basic rights to increasethe efficacy of the protection of basic rights, or equivalently recog-nize the presentness (8-1 KCCR 241, 250, 93Hun-Ma198, March 28,1996)

This statutory provision is applied to ordinary people. It ispractically difficult to set the scope of applicable professional groups.Many professional musicians like the complainants used to giveextracurricular lessons but it cannot be generalized to follow fromthe nature of the profession. As long as there is no evidence thatthe complainants gave extracurricular lessons around or after theeffective date of this statutory provision, the relevant conditionsunder the statutory provision did not come into being concretely orpresently, and therefore the filing time limit did not expire. (4KCCR 739, 750, 89Hun-Ma88, November 12, 1992; 6-1 KCCR 672,676, 91Hun-Ma162, June 30, 1994)

In order for the constitutional complaint to be legally sufficient,the injury to basic rights complained of must satisfy the relatedness-to-oneself, presentness and directness.

Complainants wish to teach children and students who wish toreceive extracurricular lessons in arts. They are also equipped with objective conditions to do so. Their freedom to give extracurricular lessons is restricted by this statutory provision. On the other hand,this statutory provision imposes a criminal penalty for any actcondemned under it, and thereforepresentlyimposes a duty not toengage in the condemned conduct even before the complainants aresubject to any enforcement action. Some complainants are professorswho cannot give extracurricular lessons due to Article 64 of theState Public Officials Act concerning prohibition of profit-makingactivities and the concurrent holding of offices and Article 55 of the Private Schools Act which applies the above to teachers and profes-sors of private schools. But, they are concurrently restricted bythis statutory provision. The above provisions do not affect the legalrelationship between the complainants and this statutory provision.

Then, the relatedness-to-oneself, the presentness, and the direct-ness of the injury to basic rights is satisfied, and this constitutional complaint is legally sufficient.

B. Review on Merits

(1) The Educational Ideology in the Constitution

(A) Parents' Right to Educate Children

Article 36(1) of the Constitution states "Marriage and Family life shall be entered into and sustained on the basis of individualdignity and equality of the sexes, and the State shall do everythingin its power to achieve that goal", specifying the State's special pro-tection for marriage and family life built thereon, which is the com- munity of living for parents and children. This constitutional pro- vision passively constitutes a right to defend one from unjust intru-sion by State power, and affirmatively imposes on the State a task ofnot only protecting marriage and home from third parties but alsorealizing marriage and family formed and maintained on the founda- tion of personal dignity and sexual equality.

Protection of family and marriage is a necessary precondition forfree democratic cultural state that the Constitution aims at. It isbecause culture is expressed through individuality, uniqueness, and diversity, and is founded upon a domain of the society's autonomy, and the domain of social autonomy starts from home. The Consti-tution extends special protection to family and thereby builds a pre-condition of protecting freedom of conscience, religion, press, arts,and sciences, and other basic rights necessary for the formation ofa cultural state. It specifies a necessary condition of the realization of a cultural state, the essence of

which is diversity in opinions and thoughts. Therefore, Article 36(1) of the Constitution protects mar-riage and family, and thereby protects the autonomous domain offamily life from the State's intervention in order to prevent theinstitution from being standardized, equalized and indoctrinated.

The core content of family life is the rearing and education ofchildren. It is primarily a god-given right of parents as well as their responsibility. Only when parents can make decisions abouttheir children's education freely and independently, they can dischargetheir duty to rear and educate their children in the free democraticcultural state, and can ensure the diversity in education that a cul- tural state demands.

'Parents' right to educate children' is not stated in the Consti- tution. It, however, arises out of the Article 36(1) guarantee of allpeople's inviolable human rights concerning marriage and familylife, the Article 10 guarantee of the right to pursue happiness, and Article 37(1) provides that 'people's liberties and rights shall not bedisrespected for not being enumerated in the Constitution.' TheConstitutional Court has already ruled, concerning a restriction onparents' right to choose their children's middle school, that 'parents have rights to educate their children in elementary, middle, and highschools who have yet to achieve maturity and work on their per-sonalities, and the right includes one to choose the schools for theirchildren.' (7-1 KCCR 274, 91Hun-Ma204, February 23, 1995) TheConstitutional Court, on a case concerning state-certified textbooks,stated that a teacher's right to teach in school education 'holds it intrust for parents' rights to teach their children, and procedurally wasdelegated by the State which holds the ultimate responsibility forpublic education.' (7-1 KCCR 274, 89Hun-Ma88, November 12, 1992)The Constitutional Court recognized parents' right to educate childrenthrough the above cases.

Parents' right to educate children are different from other basicrights in that the agent of basic rights, parents, do not enjoy it asone of the rights of self-determination. It is a right granted for the purpose of protection and development of personality of children. Inother words, parents' right to educate children is protected forchildren's happiness. Children's happiness becomes the criterion for setting the direction of parental education.

Parents have rights to make an overall plan on their children's education and configure the education according to their own viewof life, society, and education, and parents' right of education take precedence over other providers of education in principle. On the other hand, parents' right to educate children and the duty thereofare inseparable from each other. The duty forms the characteristic component of parents' right to educate children. Parents' right toeducate children can be described as 'parents' duty to educate

children.' Parents' right to educate children means the right todecide freely how they will discharge their duty to educate children.Therefore, it includes the right to decide on the objectives andmethods of the education. In other words, parents have the right to set the objectives as to how their children's personalities should be developed, and choose the appropriate means to achieve the objec- tives in light of the child's individual favor, merits, and mental andphysical level of growth. Parents have the primary right to decideon these matters because they, better than any other, can protectchildren's interests.

(B) State's responsibility for education

Parents are not granted an exclusive right to educate theirchildren by Article 36(1) of the Constitution. Article 31(1) of theConstitution states 'All people have rights to receive equal educa-tion according to their merits', guaranteeing people's right to educa-tion. Rights to education are a necessary precondition to attainhuman dignity and worth, pursue happiness (Constitution, Article 10),and enjoy humane life (Article 34(1)), and a foundation for the mean-ingful exercises of other rights. Also, in a democratic state, thebetterment of people' faculties and aptitude is a foundation for thecountry's enrichment and progress. For this reason, the Consti-tution imposes education as one of the State's important duties.

Article 31(1) of the Constitution guarantees 'the right to receiveeducation' and thereby guarantees people as a basic right the rightto demand from the State necessary facilities and to learn at andenter educational facilities according to their merits. On the otherhand, it imposes on the State a duty and task of endeavoring toprocure for all equal education according to their merits. ( 3 KCCR18-19, 90Hun-Ka27, February 11, 1991; 4 KCCR 750-752, 89Hun- Ma88, November 12, 1992) 'Rights to receive education' means the State's responsibility to prepare facilities and systems necessary formaking such equal education possible and to formulate an affirma-tive policy of providing substantively equal education to the socially and economically weak.

Therefore, the State must provide everyone, as compulsory edu-cation, with the minimum course of instructions for becoming ademocratic citizen to the extent permitted by other important re-sponsibilities of the State and its finances. Article 31(2) and (3) of the Constitution specifies not only parents' duty to make their chil-dren receive the primary education provided by the State but also the gratuitous nature of the compulsory education. 6 of the sameArticle states the basic matters about school education, life-timeeducation, and all other educational institutions, the management andfinance thereof, and the status of teachers shall be specified by stat-ute, specifying the State's power and responsibility in school edu-cation. The above

provision delegated to the State the operation ofschool education, and thereby granted comprehensive regulatory pow-er over schools and the responsibility for children's school education.Therefore, the State is granted by Article 31(6) of the Constitution a comprehensive authority over the organization, planning, operation,and supervision of school systems, or equivalently, the overall forma-tive and regulatory power over school systems.

From the area of school education, parents' rights are not ex-cluded by the State's authority over education. The constitutional limit of the State's power to educate through schools is drawn by parents' right of education and students' right to free developmentof personality and self-determination. Nonetheless, in the area ofschool education, the State was granted by Article 31 of the Consti-tution an authority over education independent in principle fromparents' right of education and holds a comprehensive formativepower over school education. It is constitutionally valid for the Stateto decide on whether to receive compulsory education or on at whatage children should begin their education. (6-1 KCCR 173, 93Hun-Ma192, February 24, 1994) Any conflict between the State's regu-latory power and parents' right of education, if at all, must beresolved by balancing competing interests for each concrete case.Parents may be deprived of the right to decide whether their childrenshould receive compulsory education or decide what age the children should enter the school system, but such deprivation does not con-stitute an excessive restriction parents' right of education. Likewise,the State has a comprehensive authority to set the contents andmethods of school education through setting educational objectives,study plans, pedagogic methods, and school organization.

(C)Relationship between Parents' Right of Education and theState's Responsibility for Education

As shown above, children's education is a common task both forthe State and the parents, and therefore calls for a mutually cooper-ative relationship. The primary holders of rights and responsibilitiesfor children's education are parents but the Constitution also grantsthe State a responsibility for children's education. The State's poweror duty of education is exercised mostly through a systematic form,i.e., school education. Ultimately, parents are responsible for theconsequences for children's education. Therefore, the State is thesecondary agent in education and an institution that forms the basicconditions for education and provides educational facilities. The Stateshould not attempt to regulate the entire course of children's growth.It should establish a school system within which the diverse interestsand faculties of the students can be freely developed to the extent that finance permits.

Parents' right to educate and rear children should be respectedin all respects of education. Nonetheless, in the area of school edu-cation, the

State was granted by Article 31 of the Constitution anauthority over education independent in principle from parents' rightof education. The State shares with parents the responsibility for children's education in that area. Outside that area, parents' rightof education take precedence over the State's.

(D) Relationship between Article 31 of the Constitution and Private Education

The Constitution guaranteesliberty-rightsand thereby acceptsinequality among individuals within the society, which is the inevit-able result of each person's exercises of his or her freedom. Onthe other hand, the Constitution guarantees social basic rights andthereby imposes on the State a duty to shape substantive conditions for everyone to exercise his or her basic rights with his or her ownmeans. Especially, Article 31 of the Constitution guarantees 'theright to receive education' and thereby imposes on the State a dutyto establish equal opportunity in the area of education. Therefore,the Article 31 right to 'receive equal education according to one'smerits' means the State's duty to not only repair and improve theeducational system but also adopt and expand compulsory education, provide social benefits in the area of education such as educationalsubsidies and loans, and thereby dilute the inequality among indi-viduals' starting points through the State's affirmative measures. However, this statutory provision does not authorize the State toimpose equality in all aspects of education, especially in that of pri-vate education outside schools, by prohibiting individuals from ob-taining or providing additional education. To the contrary, the State,in light of the ideology of a cultural state aimed at by the Consti-tution, has a duty to support and promote private education outside the formal education system such as school education. A differencein economic resources may lead to inequalities among individuals ineducational opportunity. The State can lessen the inequalities bymeans of such affirmative subsidies as the expansion of compulsoryeducation, but cannot obtain education equality by banning or re-stricting extracurricular lessons, thereby suppressing one's basicrights in private education.

(2) Subject Matter for Review

(A) Article 3 of the statute bans all extracurricular lessons as amatter of principle except for a few exceptions. Article 22(1)[1]criminally punishes those who gave extracurricular lessons in vio-lation of Article 3.

'Extracurricular lessons' prohibited by Article 3 is defined as theact of teaching knowledge, skills, and arts to elementary, middle, andhigh school students and to those students preparing for admissionsor tests for Scholastic Certification. (Article 2(3))

Extracurricular lessons given to elementary, middle, and highschool students are not deemed 'extracurricular lessons' (the thirdproviso of Article 2) if done at schools, libraries, museums, compa- nies' employee training facilities, social education facilities, ancillaryfacilities to schools, and other social education facilities in accord-ance with respective founding purposes; given by relatives in thesame family register or given as volunteer services set forth inPresidential Decrees. Also, because 'extracurricular lessons' are de-fined in terms of those given to elementary, middle, and high schoolstudents, lessons in national language, English, and arts to preschoolchildren are not considered 'extracurricular lessons.' But, the subjectmatters taught are not limited to school curriculum or specified sub-jects, but defined as the teaching of 'knowledge, skills, and arts.'

(B) Article 3, as a matter of principle, bans all acts of teachingor learning outside schools if the students are elementary, middle, andhigh school students, and defines a few exceptions.

Firstly, it is permitted to teach skills, arts and those subjects se-lected by Presidential Decrees to elementary, middle, and high schoolstudents at private teaching institutes and lesson halls (Article 3(1)).Here, 'those subjects selected by Presidential Decrees' are those sub-jects not included in any part of elementary, middle, and high schoolcurriculums. As a result, barring extracurricular lessons given bycollege (graduate) students permitted by Article 3(3), all privateteachings of skills, arts, and non-school subjects are banned so thatordinary people cannot even for free teach knowledge, skills, and artsto elementary, middle, and high school students without establishing and operating private teaching institutes or lesson halls.

Secondly, the teaching of school subjects to middle and highschool students is permitted at private teaching institutes (Article3(2)). Therefore, besides the Article 3(3) exception for college(graduate) students' private lessons, all private lessons to middle andhigh school students on school subjects are banned outside private teaching institutes. As to elementary school students, all lessons on school subjects are banned within or without private teaching insti- tutes. For instance, teaching English, a school subject for the thirdgraders all above of elementary school, to those elementary schoolstudents, is banned unless done by college (graduate) students. Whatis also banned is teaching to elementary school students NationalLanguage and mathematics at supplementary studying private teach-ing institutes, manual calculation private teaching institutes, oratoryprivate teaching institutes. Even the distribution of study papers orstudy tapes followed by visits, and the lessons through telephone,facsimile, and computer communications are all banned.

Thirdly, college students and graduate students currently enrolledin colleges can give extracurricular lessons (Article 3(3)). In thiscase, there is no limit on the subjects that can be taught. College students and graduate students can teach to elementary, middle, and high school students school subjects, non-school subjects, skills, and arts without any limitation.

As a result, the core regulatory content of Article 3 is that thoseother than college (graduate) students can give extracurricular les-sons only by establishing private teaching institutes or lesson halls,and that students can receive extracurricular lessons only fromcollege (graduate) students or through private teaching institutes orlesson halls.

(3) Constitutionality of the Instant Statutory Provision

(A) Basic Rights Restricted by Article 3

1)When the Constitutional Court reviews the constitutionality ofa statute upon request under Articles 107(1) and 111(1)[1] of theConstitution, it reviews the reviewed norm not just from the legalperspectives proposed by the requesting court or the requestingComplainant but from all constitutional perspectives inclusive of alllegal effects of the reviewed norm. Only the scope of the subject matter is defined by the request, not the standard of constitutionalreview. (8-2 KCCR 690, 96Hun-Ka18, December 26, 1996) Equally, for a constitutional complaint to satisfy the legal prerequisites, the likelihood of infringement on complainants' basic rights must exist.Once a constitutional complaint is lawfully filed, the ConstitutionalCourt use all standards of constitutional review for the review onmerits, and is not limited by the arguments of the injuries on basicrights proposed by complainants. (9-2 KCCR 862, 96Hun-Ma172,December 24, 1997)

2) Article 3 of the Act restricts all ordinary people other thancollege (graduate) students in their choosing of extracurricular les-sons as their occupation by requiring them to establish private teach-ing institutes or lesson halls. Therefore, Article 3 restricts thefreedom to choose one's occupation (the Constitution, Article 15),one's basic right to choose his or her occupation freely of anyState's intervention.

On the other hand, Article 3 bans all forms of instructions at aplace other than private teaching institutes or lesson halls regard-less of whether or how much a fee is involved. The area of conductprotected by the Constitution is 'occupation', the concept of whichrequires an element of 'continuous income-generating activity.'Gratuitous or one-time or temporary forms of instructions do not fallunder the area of conduct protected by the occupational freedom inArticle 15 of the Constitution. The acts of teaching of the abovenature and form falls under freedom of general action and are pro-tected by the Article 10

right to pursue happiness of the Constitution.

3) Article 3 directly bans only the giving of extracurricular les-sons by those wishing to give them. However, it practically restrictselementary, middle, and high school students' acts of learning outsideschools freely, limiting their rights to pursue happiness. The right to pursue happiness includes the general freedom of action and theright to free development of personality. The ban on extracurricularlessons restricts the student's right to free development of personal-ity. Children and adolescents as the learners have the right todevelop their personalities, especially their attributes and merits,without the State's intervention.

Children and adolescents are immature persons who require thedecisions of others such as teachers and parents for the develop-ment of their personalities. They are, however, not mere objects ofthe education given by parents and the State. They are independentpersons whose rights to personalities are protected as adults byArticle 10 of the Constitution, which protects the human dignity andthe right to pursue happiness. Therefore, the Constitution grants children the right to make decisions about their own education orequivalently to receive education freely within the boundaries of theState's power of education and the parents' right of education. Children therefore have the right to decide freely of the State'sintervention whether to receive separate extracurricular lessons out-side school education and from whom and in what format they willreceive extracurricular lessons.

4) The basic right limited by Article 3 is parents' right to edu-cate children. We already established above that parents should begiven an autonomous area within which they can decide what interms of education is important and needed for their children's devel-opment of personality. Parents' right to educate children as such isa god-given right derived from Articles 36(1), 10, and 37(1) of theConstitution. Therefore, the Article 3 ban on extracurricular lessons restricts parents' right to make decisions on their children's educa- tion.

5) Therefore, the basic rights restricted by Article 3 is the rightto free development of personality of the children and adolescentswishing to learn, parents' right to educate children, and the freedomto choose occupation and pursue happiness of those wishing to giveextracurricular lessons.

(B) Unconstitutionality of Article 3

1) Legislative Background and Purpose of Article 3

A)In our country, academic background played a decisive role indetermining one's social and economic status. People's passionateinterests in their children's education gave rise to a prevailing trend that parents devote all their efforts and resources to their children'seducation. On the other hand, due to the transient educationalpolicies of and the

insufficient investment in education by the State,the quality and facilities for school education did not meet people'sexpectations, and turned away people's attention to private education.As the income level arose, the competition for the limited opportunityfor higher education became ever more intense, and the competitionto obtain extracurricular lessons in preparation for college admissionsbecame over-heated when the ban on extracurricular lessons wasfirst legislated in 1981.

Against this background, the Act on Private Institutes (revisedby Act No. 3433 on April 13, 1981) was revised and enacted on April13, 1981, banning extracurricular lessons almost entirely. From thispoint on, extracurricular lessons disappeared from the surface butcontinued illegally. When the Act on the Establishment and Opera- tion of Private Teaching Institutes (revised by Act No. 4133 on June 16, 1989, the name of the Act changed from that time on) allowed elementary, middle, and high school students to receive extracurric- ular lessons at private teaching institutes and college (graduate)students to give extracurricular lessons, extracurricular lessonsincreased again and brought back the conditions of 1981 by the timeArticle 3 of the Act came into being as part of a major revision ofthe Act on the Establishment and Operation of Private TeachingInstitutes.

Due to the social structure built onacademic-background-firstism,the limited opportunities of higher education, and the lack of highquality education through schools, a difference in private educationhas lead to a difference in competitiveness in admissions race. Thosefalling behind in private education were disadvantaged in obtaininghigher education and could be given relatively weaker social andeconomic status.

Over-heated competition for extracurricular lessons caused severalundesirable side-effects other than economic burdens on parents. They are the deficiency in students' creativity and self-initiatedstudying abilities, the impoverishment of school education due to theoverheated race outside schools, the disadvantages and the feeling ofrelative deprivation suffered by those parents and children who can- not obtain extracurricular lessons for economic reasons, and the un-desirable impact on the national economy due to wasteful invest-ment in terms of human and physical resources.

B) The most fundamental and desirable cure for the overheatedrace in extracurricular lessons is to revise the social structure sothat the abilities, not academic backgrounds, are respected, improvethe environment for and therefore the quality of school educationthrough financial investment, pursue a balanced growth of variousinstitutions of higher education, expand life-time education, and espe-cially improve on college admissions system to decrease the demandfor extracurricular lessons. However, these problems are closelyrelated to all other social phenomena, and therefore cannot be curedin short time. It has been

long since the overheated competition in private education related to college admissions surfaced as a socialdisease. Parents, well aware of these pathological phenomena, didnot try to overcome them but rode on them for the sake of theirchildren's interests, both contributing to the aggravation of thesocio-pathological phenomena and being victimized by them at thesame time.

Against this social background, the overall ban on extracurric-ular lessons in Article 3 was an unavoidable means to reduce theoverheated competition in private education and thereby restorenormalcy to school education, and lessen the economic burdens onthe majority of people when the adverse effects at that time weretoo great to be left alone.

When viewed in light of the legislative background and the reg-ulatory content surveyed above, the legislative purpose of Article 3 is to shut down high-expenditure extracurricular lessons thereby coolingdown the race in extracurricular lessons and restoring normalcy toschool education, minimize the inequality in opportunity for privateeducation arising out of the abnormal race in extracurricular lessons,and therefore reduce nationally the waste of human and physicalresources because of the abnormal educational investment.

2)The Principle of Proportionality as the Limit on the Restric-tions on Basic Rights

The unconstitutionality of Article 3 depends on whether the re- striction on parents' right to educate children and children's right todevelopment of personality can be justified by its legislative purpose.In other words, the constitutional issue raised by Article 3 is that of drawing the boundaries between children's right to free developmentof personality and parents' right of education on one hand, and theState's responsibility for education, i.e., to what extent the State canrestrict children's right to free development of personality andparents' right to educate children in the area of private education.In this angle, the restriction on the freedom to choose extracur-ricular lessons as an occupation is secondary.

As to school education, the State has a broad authority in shap-ing the educational system. In such areas of off-school private edu-cation as extracurricular lessons, the State's regulation has a limit.The State must guarantee people's basic rights and therefore mustrespect children's right to free development of personality andparents' right of education in restricting such private form of educa-tion as extracurricular lessons. In other words, the opportunityshould be open for the parents to realize their particular wishes fortheir children's education when formal education does not satisfythem. The opportunity should be also open for children to developtheir diverse

merits and attributes freely of the State's intervention.However, parents' right of education, children's right to personalitydevelopment, and the occupational freedom of those wishing to giveextracurricular lessons are not absolute basic rights and thereforecan be restricted like other basic rights pursuant to Article 37(2) ofthe Constitution. Such restriction on basic rights must abide by theprinciple of proportionality, the mandate of government by the ruleof law.

3)Legitimacy of legislative purpose and appropriateness of means

A) The restriction on basic rights by Article 3 is permitted onlywhen the legislature pursues through it a constitutionally permittedpurpose. The legislative purpose of Article 3, as well as the publicinterest that justifies the restriction on people's basic rights, is, assaid before, to shut down high-expenditure extracurricular lessons tocool down the race in extracurricular lessons, thereby restoring nor-malcy to school education; lessen the economic burdens on parentsarising out of the abnormal race in extracurricular lessons, and there-fore reduce nationally the waste of human and physical resourcesbecause of the unreasonable educational investment.

The Constitution accepts it as evident that, when its guarantee of rights to property, occupational freedom, and other basic rights allowsindividuals to enjoy their economic freedom, they will have to liveeconomically unequal lives to a certain extent. The Constitution alsoguarantees parents' right to educate children and their rights to use and dispose of their properties freely, thereby protecting their rightsto bear different economic burdens for their children's educationdepending on their views of life and education and their economicresources. Therefore, it is highly questionable whether Article 3'slegislative purpose to lessen parents' economic burden in privateeducation and to equalize the extent of private education received by all people is legitimate public interest permitted by the Constitution.

B) People will have different conceptions of 'high-expenditure'depending on their economic resources. To the resourceful, the so-called 'high-expenditure extracurricular lessons' may not be'high-expenditure.' To the low-income, even extracurricular lessonsat private teaching institutes which is allowed by Article 3 may be'high-expenditure.' The Constitution posits as its ideal human imagethat of a mature democratic citizen who decides on and shapes each one's life under his or her responsibility within the social commun-ity on the basis of his or her views of life and society. Therefore,it is consistent with the ideology of the Constitution that parentsdecide themselves how much a burden they will carry for their chil-dren's private education, in consideration of their views of life andeducation and their economic resources, and they bear the respon- sibility and the risk thereof. Furthermore, forcing all students toreceive private education in all areas

encompassing school subjects,non-school subjects, arts, and skills only from private teaching insti-tutes and lesson halls will make them receive the almost equal level and content of private education. Such result contradicts the con-stitutional principle of a cultural state, which is directed at crea-tivity, individuality, and maximization of one's potential as the goalof education and at the individuality and diversity of each persongenerally.

In private education, our society unfortunately lost a self-correcting or self-controlling capacity. The State must intervene. In this exceptional loss of societal self-regulation, the legislative purposeof Article 3, namely preventing high-expenditure extracurricular les- sons and thereby lessening parents' burden in private education dueto over-heated competition and procuring equal education to all peopleto an extent, is a legitimate purpose that the legislature may pursue 'provisionally.'

C) From the perspective of appropriateness of means, Article 3allows extracurricular lessons through private teaching institutes, les-son halls, and college (graduate) students but otherwise adopted acomprehensive ban of all private forms of extracurricular lessonswith the possibility of high-expenditure extracurricular lessons. It isunquestionable that such means contributes to the accomplishmentof the legislative purpose. The Article 3 is appropriate as the means.

4) The Least Restrictive Means and the Balancing of Interests

A) The progress of human history and culture can take rootsonly when one generation's product of mental activities is inheritedby its successor generation. The act of teaching and learning is aprecondition of historical development and cultural progress.

All individuals, through learning, develop their inborn potential,mature their personalities, and nurture the abilities to live independ-ently within the social community. One's liberty and right to learnis the stepping stone for the national community to progress eco-nomically and culturally. It is one of the most important basic rightsupon which one can maintain human dignity and worth and pursue a happy and humane life. The freedom to learn includes a right to decide on the instructor, the content and place of instructions, andthe expenses for instructions.

Especially, as established earlier, private education is an area forthe society's autonomy. Children's right to personality developmentand parents' right to educate children in principle take precedenceover the State's regulatory power. The private act of teaching andlearning does not interfere with another's legal interest or public in-terest, and is therefore not socially harmful. On the contrary, it isan act guaranteed as a basic right, and an act to be promoted by acultural state. Only in exceptional situations where the exercise ofthe basic right causes a

social risk, the State must intervene andregulate.

Therefore, if the legislature wants to regulate extracurricular lessons even to protect the society from important risks, it mustchoose, among many appropriate means to accomplish the legislative purpose, the means as less restrictive on and as respectful of basicrights as possible. Therefore, the format of regulation should not be a 'ban as a principle' but a ban only 'in exceptional situationsaccompanied by anti-societal elements.'

B) The main legislative purpose of Article 3 is to suppresshigh-expenditure extracurricular lessons that have encouraged andover-heated the abnormal race in extracurricular lessons and other-wise were the main culprit for the attendant social evils. In orderto suppress high-expenditure extracurricular lessons, the State had toengage in price control. Article 3 therefore allowed extracurricularlessons only through private teaching institutes and lesson halls, andcontrolled the prices by setting up a registration system for private teaching institutes and lesson halls. In other words, the legislaturefound it easy to control lesson fees when extracurricular lessons takeplace publicly and lawfully through the registered private teachinginstitutes and lesson halls, and therefore permitted such extracurric-ular lessons. Also, the legislature found the risk of high-expenditure extracurricular lessons given by college (graduate) students relatively low, and therefore allowed such extracurricular lessons. On the other hand, the legislature must have banned private lessons almost entirelybecause it considered that they were hard to monitor and the pricecontrol on lesson fees would be difficult to maintain.

In other words, the legislature, in preventing high-expenditureextracurricular lessons, took the method of 'overall prohibition andexceptional permission' against all extracurricular lessons, entirelybanning private lessons. As a result, many forms of teaching with- out any relationship to the legislative purpose of eradicating the risk of high-expenditure extracurricular lessons, were inclusively banned.

For a concrete example, firstly, high-expenditure extracurricularlessons are the products of the overheated frenzy in private educa-tion, and the overheated race is caused by the intense admissionsrace. Some private lessons are unrelated to the admission race anddone in the area of private education, in other words, knowledge,skills, and arts in non-school subjects. They are done for the pur-pose of self-development, hobbies, and pastime. Banning such privatelessons exceeds the extent of restriction on basic rights necessaryfor the accomplishment of the legislative purpose.

Secondly, the ban on elementary school students' receiving ofextracurricular lessons on school subjects at private teaching insti-tutes also exceeds the means necessary for the accomplishment of thelegislative

purpose. As long as extracurricular lessons given at pri- vate teaching institutes are under the control of lesson fees by stat-ute, there is no risk of high-expenditure extracurricular lessons there.

Thirdly, private lessons on school subjects given to elementary,middle, and high school students are directly or indirectly related tothe admission race. They are likely to be turned into high-expenditure extracurricular lessons. Although there is thus the needfor regulation, ordinary people's extracurricular lessons on schoolsubjects may include relatives' or neighbor housewives' lessons forlow fees, prominent artists' private lessons in music and fine arts forappropriate fees, private lessons through computer communications, the sale of study papers followed by visits, and many other privatelessons that will not cause any social evil.

C) Since extracurricular lessons are not by nature anti-socialand are acts protected as basic rights, Article 3 should have takenthe approach of overall permission and 'exceptional ban in anti-social cases.' Article 3 takes the inverse approach of 'overallprohibition and exceptional permission.' The roles of the rule andthe exception are reversed. Furthermore, the prohibition in Article 3includes for regulatory convenience many types of conduct that donot seem necessary to be included for the accomplishment of thelegislative purpose. The regulatory means chosen by the legislature is not the least restrictive and unavoidable means for to accomplish the legislative purpose.

The legislature used 'convenience of control' as the standard ofchoosing the means, and thereby banned private lessons outsideprivate teaching institutes and lesson halls entirely. As the scopeof the banned conduct thus grew, the State also had to broaden the scope of illegal extracurricular lessons that the State had to monitorand discover in order to maintain the effectiveness of the statute. Ofcourse, one may argue that, unless all private lessons by ordinarypeople are banned, the monitoring for high-expenditure extracurric-ular lessons will be ineffective given the extreme shortage in laborand budget required. However, the shortage in labor and budgecannot justify indiscriminate restriction on important basic rights.Furthermore, detection of illegal extracurricular lessons is difficultand requires ever more administrative resources of the State. Thelegislative means to accomplish the legislative purpose chosen byArticle 3 is the only effective means.

The restriction exceeding the extent necessary for the accom-plishment of the legislative purpose obstructed humanity's mostnatural acts and the acts to be respected most by the State, namely,freely and individually learning from prominent artists and artisans orhousewives in the neighborhood. Such result has reduced the effi-cacy of Article 3 and made it disrespected by people. Ubiquity ofillegal acts at the places of learning is itself harmful educationally.That a law is not abided by people and cannot enforced by the Stateis the

representative manifestation of the fact that it is regulatingan area of life not practically possible to be regulated.

D) From the perspective of the balancing of interests, the legis-lature's aim through Article 3, namely 'prohibition of high-expenditureextracurricular lessons', may not be a constitutionally permitted leg-islative purpose. Given that question, such public interest cannot besaid to be great. The concrete effects produced by the restriction on basic rights, namely, the prohibitory effect on high-expenditureextracurricular lessons, are not clearly shown, either. On the otherhand, the restrictive effects on basic rights and the threat to theconstitutional aim of a cultural state are severe. Article 3 placesa severe limitation on parents' right to educate children freely andchildren's right to learn freely. Outside the formal education system,there was no choice other than private teaching institutes educationregulated by the State. As a result, 'diversity in private education',needed to supplement the uniformity of the formal education, and'individuality in private education', needed to accommodate eachchild's individuality and merits, were lost amidst private teachinginstitutes education, which is itself conducted as collectively anduniformly as school education. A case of banning all students allforms of private education outside private teaching institutes just so as to prevent high-expenditure extracurricular lessons is unheard of. It also contradicts the Constitution's image of humanity built on thebasic principles of self-determination and individual responsibility, andalso violates the principle of a cultural state aimed at individuality,creativity, and diversity.

Such regulation of private education as Article 3 has more thanthe private dimension of infringing on basic rights of parents andchildren. It culturally impoverishes the State, and the cultural povertywill lead to social and economic backwardness in this age of unlim-ited global competition which is difficult for the states to survive.The regulation of private education in Article 3 goes beyond theprivate dimension of substantially infringing on the basic rights of parents and children in private education but gentrifying the Stateculturally. Cultural poverty in this age of unlimited global competi-tion difficult for states to survive will ultimately lead to social andeconomic backwardness. There is a question as the effectiveness ofArticle 3 in the accomplishment of the legislative intent, one hand,and Article 3 produces substantial restrictive impact on basic rightsand substantial disadvantages in the realization of a cultural state,on the other. Therefore, Article 3 departs widely from a reasonablerelationship of proportionality between the public interest obtainedthrough the restriction and the restrictive impact caused by therestriction, and therefore violates the balance of interests.

5) Sub-conclusion

Then, Article 3 violates the principle of proportionality becauseit is not the least restrictive means and does not balance the inter-ests, thereby excessively and unconstitutionally restricts people'srights to educate children, to develop personality freely, and to chooseoccupations.

The reason for invalidating Article 3 is not that the prohibitionof high-expenditure extracurricular lessons is itself unconstitutional.It is that the chosen means of suppressing high-expenditure extra- curricular lessons is unconstitutional because it all-inclusively bansthose extracurricular lessons with no risk of being high-expenditureand thereby excessively restricts people's basic rights. Therefore,even though Article 3 is struck down, the legislature can takelegislative action, the effects of which are limited, for instance, toextracurricular lessons given for exorbitant fees, extracurricular les-sons given by college professors and others related to college ad-missions to those students preparing for exams, extracurricularlessons to the students given by school teachers who can influencestudents' evaluations and grades, and other cases of threatening the fairness of admissions or causing grievous social harms.

(C) Unconstitutionality of Article 22(1)[1]

Article 22(1)[1] is a punitive provision that punishes the viola-tion of Article 3. Therefore, Article 22(1)[1] is unavoidably uncon-stitutional and is struck down.

4. Conclusion

The instant statutory provisions are unconstitutional. JusticesChung Kyung-sik, Lee Young-mo, and Han Dae-hyun each wrote adissenting opinion. Justices Kim Yong-joon, Kim Moon-hee, KohJoong-suk, Shin Chang-on, and Ha Kyung-chull wrote a opinion inreply to Lee Young mo's dissent.

5. Justice Han Dae-hyun's Dissenting Opinion

This statutory provision excessively and unconstitutionally re-stricts people's basic rights, I agree. I, however, think that imme- diate invalidation is not appropriate in light of today's reality.

As the majority opinion appropriately state, the most fundamentaland desirable cure for the overheated race in extracurricular lessonsand the attendant evils is to revise the social structure so that the abilities, not academic backgrounds, are respected, improve the en- vironment for and therefore the quality of school education throughfinancial investment, pursue a balanced growth of various institu-tions of higher education, expand life-time education, and especiallyimprove on college admissions

system to decrease the demand forextracurricular lessons. Banning extracurricular lessons is not afundamental cure.

However, today's reality has not been improved much from 1981, the year that a ban on extracurricular lessons was first legislated, or 1995, the year that this statutory provision was legislated. Academic backgrounds are still all-important in the decisions affecting employ- ment and social status. College admission race is still intense arounda few schools in the capital area. Various forms of extracurricularlessons are appearing in preparation for the College Scholastic AbilityTest (Pre-University exam), school grades, and logical compositiontests. The frenzy to strengthen small children's scholastic abilitiesis still high. The quality and environment for school education isstill insufficient.

Then, we had better to maintain the regulation to a certain ex-tent than to allow extracurricular lessons entirely. The concretechoice for the regulatory method is the legislature's task. The leg-islature should examine closely adverse consequences and the severitythereof arising out of each type of extracurricular lessons varying interms of instructors, students, the contents and places of instruc-tions, and the fees for instructions. It should also project the changesthus far to the future. It should ultimately craft a precise legis-lative method that effectively restricts only those types of extra- curricular lessons causing adverse consequences, and therefore theleast restrictive means on basic rights that eliminates the evils ofextracurricular lessons.

Therefore, I think that we should not immediately invalidate theinstant statutory provision and instead should find it nonconforming to the Constitution so that it remains effective in form, and therebyallow the legislature to prepare a constitutional way to regulateextracurricular lessons.

6. Justice Chung Kyung-sik's Dissenting Opinion

I find it legitimate to regulate extracurricular lessons. The un- constitutionality of this statutory provision arises out of its insuffi-ciency as a basic-rights-restrictive-statute in its system and method. We should not immediately invalidate this statutory provision through a simple decision of unconstitutionality. We should hold the statutoryprovision provisionally effective on a decision of nonconforming tothe Constitution.

A. Legitimacy of Regulating Extracurricular Lessons

Extracurricular lessons are causing serious evil consequences intoday's society. It is necessary and legitimate to regulate them.

From an educational viewpoint, extracurricular lessons consist

usually of commission to memory of isolated pieces of knowledge andof sharpening the abilities to answer the questions in admissionstests for higher-level schools. Students are forced into mechanisticacquisition of knowledge and do not accomplish intellectual maturity of a creative person. They do not nurture the abilities to study and solve problems independently. An excessive amount of extracurric-ular lessons burdens students too much mentally and physically intheir growing years, and deprives them of an opportunity to develop their specialties and interests. It disrupts their emotional state andsound physical growth. At they relate to school education, extra-curricular lessons cause students to ignore school education and putemphasis on extracurricular lessons, forcing the schools to distorttheir curriculums to meet the exam-preparation needs so that theycan compete with extracurricular lessons. As a result, many teachersfind their roles as teachers full of contradictions and some of themend up becoming high-income extracurricular lesson instructors.

From an economic perspective, the frenzy over extracurricularlessons makes the lesson fees oppressive upon family finances. Rich families invest in exorbitant lesson fees to receive ever better extra-curricular lessons. Ordinary people also receive extracurricular les-sons to get out of anxiety traps. It is well known that high-expenditure extracurricular lessons cost a few hundreds of thousand wons per month to a few million wons per subject. As the time forcollege admission tests nears, so-called 'pinpointing extracurricularlessons' and 'wrap-up extracurricular lessons' mushroom at the rateof a few tens of million wons per month. In this state, parents can- not but help investing in exorbitant fees despite their family financeseven by taking up extra jobs, and feel tempted to earn moneythrough illegal means for their children extracurricular lessons.

From the social perspective, the frenzy over extracurricular les-sons is a serious problem. Children of low-income families fallbehind in the race in extracurricular lessons. Already handicapped bythe impoverished school education, effectively, they are not given an equal opportunity for admissions to higher-level schools. This stateof affairs leads the formation of social status through private invest-ment in education and the hereditary pass-on of wealth. Those whodid not obtain for their children or receive themselves extracurric-ular lessons form a belief that education is decided by economicresources and the competitive structure of the society is not fair.The frenzy over extracurricular lessons deepens the sense of aliena-tion between various classes of people and interferes with the stabil-ization and integration of the society.

A fundamental cure for the evil consequences of extracurricularlessons must involve the enrichment of school education, the expan-sion

of opportunities for higher education, the improvement on studentselection processes, the reform of consciousness, and the establish-ment of merit-based society. However, such fundamental cure willbe a new, long-term solution that must wait for an all-inclusivenational consensus. Therefore, today's reality demands a direct banon extracurricular lessons as the urgent symptomatic treatment forthe evil consequences of extracurricular lessons. Therefore, thelegitimacy of legislative intent is sufficiently recognized.

B. Unconstitutionality of the Regulatory Method of

this Statutory Provision

This statutory provision adopted the overall ban on extracurric-ular lessons accompanied by the selective permission in exceptionalcases. Such regulatory method does not satisfy the requirementsfor legislative restriction on basic rights.

(1) All acts protected by basic rights are by themselves notharmful socially. They need to be restricted only because they con-flict with others' interests or public interest when they are exercised.Restriction on them, even if done by statute, should not eliminatethe right to exercise the freedom guaranteed by basic rights, andshould be limited to the necessary extent. (10-1 KCCR 552, 96Hun- Ka5, May 28, 1998)

The acts of learning and teaching are mankind's original behav-ior. They are the basic elements necessary for the maintenance ofa society. They are protected by the general freedom of action de-rived from the Article 10 right to pursue happiness in the Consti-tution. Lessons are not in themselves harmful. On the contrary,they are in essence educational, and should be protected as basicrights. Only when they cause educational, social, and economicharms, they need be appropriately regulated.

Of course, the types of lessons vary from the socially harmfulones such as given by incumbent school teachers and college profes-sors for high fees to the socially innocuous ones given by relativesin a natural mode. The legislature should decide which type will beregulated, and it should take into account the reality of school edu-cation, the extent and practice of extracurricular lessons, the intel-lectual level and cultural background of the society, the income distri-bution, and other social and economic circumstances. Subject to thatlimitation, the legislature has a broad legislative-formative discretion.

Nonetheless, the statute regulation extracurricular lessons shouldbe limited to the extent necessary for remedying their evil conse-quences. An overall ban, which destroys the freedom to teach andlearn

guaranteed as basic rights, is not within the scope of thatlegislative-formative discretion.

(2) This statutory provision adopts the regulatory format wherethe ban is the rule and the permission is an exception. Such format must be based on a judgment that extracurricular lessons are inher-ently or socially undesirable or harmful. When the act of learningand teaching is a basic right to be guaranteed, such legislative formatis not consistent with the requisite system and method of legisla-tively restricting basic rights, demanded by the Constitution. Basicrights may be restricted for the sake of public welfare and socialorder, but only by a legislative method that restricts as little as pos-sible. Therefore, any regulation on extracurricular lessons must in- volve the selection of those particular and concrete types that cause social harms and therefore need to be regulated, and the restrictionsor bans of only those types. Through those types not regulated,people should be freely allowed to teach and learn. This statutoryprovision takes the inverse method of banning all forms of extracur-ricular lessons and permitting a few defined exceptions. The inverseregulatory method will necessarily result in a ban on those extracur-ricular lessons that do not need to be regulated, and therefore vio- lates the rule against excessive restriction, the requirement for anylegislation that restricts basic rights. One example of such unnec-essary restrictions is that close relatives, not in the same familyregister, cannot give extracurricular lessons even for free.

(3)This statutory provision bans all forms of extracurricular les-sons and permits a few exceptions. Such legislative format is notconsistent with the system and method of restricting basic rights.It can restrict extracurricular lessons that do not need be regulated.Therefore, it infringes upon the instructor's freedom to choose occu-pation and the student's freedom to learn excessively of the extentnecessary for the accomplishment of the legislative purpose.

Therefore, this statutory provision violates the rule against ex-cessive restriction of Article 37(2) of the Constitution.

C. Proposal to Cure the Unconstitutionality of this

Statutory Provision and the Decision of

Nonconformity to the Constitution

I find this statutory provision unconstitutional because regulationon extracurricular lessons is admittedly legitimate but the chosenlegislative method is not consistent with the constitutional ruleagainst excessive restriction. I do not mean that extracurricular lessons cannot be regulated, but that the legislature can properlyregulate extracurricular lessons through a constitutional method.

In the current situation where the evils of extracurricular les-sons are still serious and need to be regulated, the invalidation ofthis statutory provision and the resulting all-out emancipation ofextracurricular lessons does not accomplish a constitutional state ofaffairs.

The elimination of the unconstitutionality in this statutory provi-sion depends on the legislature's efforts to improve upon it legisla-tively. The legislature first must base its efforts on the belief thatthe acts of learning and teaching are not by themselves harmful but are protected as basic rights. Upon that basis, the legislature mustchange the current method of prohibiting all extracurricular lessonsand permitting exceptions to a method of permitting all forms oflearning and teaching and selectively regulating only those types thatcause social harms and need be regulated. Only then, the legisla-ture can accomplish a constitutional state of affairs.

Therefore, we should not immediately invalidate this statutoryprovision through a simple decision of unconstitutionality. Far moredesirably, we should allow the legislature to find a reasonable methodto regulate extracurricular lessons by forming a comprehensive,nation-wide consensus and in the meantime avoid the entire regula- tory vacuum in extracurricular lessons by holding the statutory pro-vision provisionally effective on a decision of nonconformity to theConstitution.

7. Justice Lee Young-mo's Dissenting Opinion

I find this statutory provision constitutional and state the reasonsbelow.

A. National Educational Policy and the Standard for

Constitutional Review

(1) Education originates from the custody holders' rights andduties to protect and educate their children. It is a natural right thatbegan with human history. Accumulation of knowledge and skillsthrough education is necessary for each individual's formation of personality and participation in social life. A citizen of a demo-cratic state needs education to understand national governance andparticipate in politics. A modern constitution states the right toreceive education as a basic right.

(A) The Constitution states in Article 31, all people have rightsto receive equal education according to their merits (Item 1). Allpeople have duties to provide elementary education and the educationspecified by law to the children they protect(Item 2). The right to receive education

is a basic right that forms the basis of all liber-ties and rights. It is the essential element necessary for the estab-lishment of a democratic, cultural, and social welfare state, the ideol- ogy of the Constitution. Article 31(1)'s mandate 'equal. . . accordingto their merits' reflects the importance of this right. It bansdiscrimination on the basis of mental and physical merits, gender,religion, belief, social status, economic status, or any other criterion(the Framework Act on Education, Article 4), and mandates the es-tablishment and administration of a scholarship or educational subsidyfor those with economic hardship (the same Act, Article 28(1)). Itis geared toward the realization of substantive equality.

Therefore, whether the State's educational policy is consistentwith the principle of equality is not an issue of policy judgment.Instead, in light of the bases for discrimination listed in Article 11(1)of the Constitution (gender, religion, social status) should be subjectto strict scrutiny. (9-1 KCCR 683, 96Hun-Ma89, June 26, 1997, JusticeLee, Young-mo's concurring opinion)

(B) The legislature enacted the Framework Act on Education byAct No. 5437 on December 13, 1997 for the purpose of specifyingpeople's rights and responsibilities and the responsibilities of the State and local governments about education, and the educationalsystem and the basic matters about its operation.

According to Article 31(1) and (2) of the Constitution and Article1 of the Framework Act on Education, education is not only allpeople's rights but also the common responsibility of the State andpeople. Both the providers and the recipients of education are theagents of that right. People's right to learn and teacher's freedomto teach are both protected but the first takes precedence over thesecond. (4 KCCR 756, 89Hun-Ma88, November 12, 1992) Parentsand other custodians ('parents', hereinafter) have the duty to havetheir children or the children under their custody ('children', herein-after) receive the basic education, elementary education (6 years), andthe State and the local governments have the duty to bear theexpenditure, establish and administer schools and social educationfacilities, and instruct and supervise the same (the Constitution,Article 31(1)-(3); the Framework Act on Education, Articles 8, 11,and 17). The learner's basic human right must be respected andprotected. Therefore, the contents, methods, materials, and facilitiesof the education must accommodate the learner's personality andindividuality so that his or her merits are developed to the fullestextent. Students must abide by the rules of the school, and refrainfrom interfering with teachers' education or research or from dis-rupting the orders of the school (the Framework Act on Education,Article 12).

(2) Education must, under the ideology ofbroadly benefiting

all-mankinds1), help all people build their personalities and equipthemselves with the abilities to live independently and the qualifi-cations of democratic citizens so that they can live human lives, andthereby contribute to the development of a democratic state and therealization of the ideal of mankind's co-prosperity (the FrameworkAct on Education, Article 2). School education must aim at theeducation for the whole personeducation that includes the develop-ment of students' creativity and personality as its goal (Article 9(3))('the purpose of school education', hereinafter).

School education is an important venue for children's education.It is a public task (the same Act, Article 9(2)). Therefore, schoolstake the central role in providing organizational and systematic edu-cation (education set forth in Article 2 of the Elementary and Sec- ondary Education Act and Article 2 of the Higher Education Act is'school education', and everything else 'private education', herein-after). The issue of determining 'when, where, who, what, how' toteach and learn' about one's children's education is a common taskand responsibility for the State and parents and requires harmony andcompromise between those in the mutually cooperative relationship.Therefore, 'the purpose of school education' forms the foundation for children's education, which is the common responsibility of the Stateand the parents. Then, the State must not depart from it in inter-vening in children's education, and the parents' decision-making mustabide by its restrictions.

(A) The Constitutional Court ruled, in relation to school educa-tion, that when to make secondary education compulsory (3 KCCR 11,90Hun-Ka27, February 11, 1991), whether to use state-selected text-books as opposed to certified or approved ones (4 KCCR 739, 89Hun-Ma88, November 12, 1992), and whether to mandate managementcommittees in private schools as in state or public schools (7-1KCCR 267, 91Hun-Ma204, February 23, 1995), are the matters up tolegislative discretion and policy-making. These decisions cited the mandate in Article 31(6) of the Constitution that the basic mattersabout school education, life-time education, and all other educationalinstitutions, the management and finance thereof, and the status ofteachers shall be specified by statute, and used that clause to reasonthat the basic policies and guidelines about education are to be de-termined by the statutes of the National Assembly, and the details by the policy-making of the Administration pursuant to the delegation bythe statutes. Upon that reasoning, the Constitutional Court did notfound wide departures from the scope of the discretion and therefore issued the above decisions.

(B) If 'the purpose of school education' is interfered with by

private education, the State has the duty and responsibility to takeappropriate regulatory actions to normalize school education. Thepublic value of school education does not stop at requiring parents tosend their children to elementary schools. It goes beyond regulatingthe passive exercise of parents' right to educate children by imposingthe said duty. Even when parents exercise their right affirmativelyby sending their children to middle and high schools, it imposes onthe parents a duty not to interfere with the public value of schooleducation.

When private education interferes with the public value of school education, the State can take various actions. Those actions, thoughbased on 'the purpose of school education' vary according to the in-alienability of private education and school education, the impact ofthe instructions in school education on school education and thesociety. Therefore, when the State formulates regulatory actionsaimed at the normalization of school education, the State must takeinto account the reality of school education at the time of the regula-tion, the level of economic, technological, and cultural development,the need to respond to the quantitatively and qualitatively growingneed for education of the society that is becoming ever more complex,and the adverse effects of private education on their children. TheState's judgments thereof belong to the policy-making domain related to the administration of school education in Article 31(6) of the Con-stitution. As long as the State abides by the limit of the discre-tion, it does not violate the legislative formation and the policy-making privilege.

In controversy in this case is extracurricular lessons, a part ofprivate education. It is not complete in itself but ancillary and sup-plementary to school education. This statutory provision restrictsparents' right to educate children and children's freedom of learning.Constitutional review of this statutory provision must examine thelegitimacy of legislative purpose and the appropriateness of means,namely whether the legislative formation and policy-making concern-ing extracurricular lessons departs from the reasonable limit. On theother hand, instructors' occupational freedom belongs to the domainof economic liberties. Due to the uniqueness of the occupation, suchfreedom is directly related to educational and social issues, and itsunlimited exercise may disrupt social order and public welfare, andtherefore can be restricted for the purpose of realizing a social wel-fare state. Constitutionality of the regulatory legislation of thisnature is determined according to the reasonableness of legislativeformation. (11-2 KCCR 36, 98Hun-Ka5, July 22, 1999)

(3) The determination of the standard of constitutional reviewaccording to educational policies is important to the interpretation of'national security, public order, and public welfare' of Article 37(2)of the Constitution, which is the limiting provision as well as the norm of

review on the restriction on people's liberties and rights,and also to the issue of the burden of proof.

B. Constitutionality of this Statutory Provision

(1) We had once left extracurricular lessons supplementary to school education, to the self-regulation of parents and instructors.As extracurricular lessons became expensive and over-heated, we hadfelt to our bones severe social problems. In order to prevent suchside-effects and evils of extracurricular lessons, we banned extracur-ricular lessons to elementary, middle, and high school students en-tirely by enacting Article 9-2 during revision of the Act on PrivateInstitutes by Act No. 3433 on April 13, 1981 (except lessons inskills, arts, and sports, lessons given at private institutes to thosenon-students preparing for examinations, lessons given by relativesin the same family register, instructions that qualify as volunteerservices, trainings at schools, libraries, factories, and other work-places). The law later went through a major revision into the Acton the Establishment and Operation of Private Teaching Institutes byAct No. 4964 on August 4, 1995 ('Law', hereinafter). There werepartial revisions on the scope of exceptions but they did not change the principle that 'extracurricular lessons are banned to all students enrolled in schools.'

(A) Article 2(3) of the Law defines extracurricular lessons as'activity which teaches students of elementary schools, middle schools,high schools or schools equivalent thereto or persons preparing them-selves for an examination for school admission or qualification on certification of academic attainments'; Article 3 states 'No personshall provide extracurricular lessons' and thereby bans all extracur-ricular lessons as a matter of principle. Each item of that Articlethen defines the exceptions to that principle. Article 22(1)[1] of theLaw then states 'A person shall be punished by imprisonment for not more than 1 year or a fine not exceeding 3 million Won'. The scopeof permitted extracurricular lessons is quite broad.

(B) According to the Empirical Study on Extracurricular lessons(June 1997) of the Korean Educational Development Institute ('the Study', hereinafter), 53.1% of elementary, middle, and high schoolstudents receive extracurricular lessons, and another 45.3% are will- ing to receive them. 76.6% of the subjects taught in extracurricular lessons are school subjects (National Language, English, Mathemat-ics, Science, Civics, etc.), and another 19.5% are arts and sports.81.5% of those receiving extracurricular lessons in school subjectsreceived them in order to supplement school education in those sub-jects that they fall behind. 21.4% of those receiving extracurricularlessons in arts and sports receive them for the purpose of schooleducation or admission

into higher-level schools, and another 62.2%for the purpose of developing hobbies. Parents, when asked aboutthe reason for the frenzy over extracurricular lessons, pointed toadmissions race in 58.2%, development of potential and talents in15.3%, 'just because others do it' in 14.6%, and lack of time toinstruct children themselves in 6.3%.

Extracurricular lessons change depending on the subjects covered by admissions. If college admissions take into account school grades,there appear extracurricular lessons to address that. If each collegeconducts its own exam, extracurricular lessons prepare students forthe admission test for universities. The College Scholastic AbilityTest is responded to by extracurricular lessons as logical compositiontests are.

Extracurricular lessons have not been pursued for the pure pur-pose of helping children identify and develop their potentials or buildup their character as a whole person. They have been pursued tosupplement school education and prepare for admissions into higher- level schools.

(2) The main thesis of the majority opinion is that Article 3infringes upon the extracurricular lesson instructors' freedom tochoose occupation and right to pursue happiness, the parents' rightto make decisions on their children's education, and the children'sfreedom to learn and right to free development of personality, and is therefore unconstitutional. The majority finds that, because the banis applied against private lessons in knowledge, skills, and artsnon-school subjects, relatives' or neighbor housewives' lessons for low fees, prominent artists' private lessons in music and fine artsfor appropriate fees, private lessons through computer communica-tions, the sale of study papers followed by visits, and lessons toelementary school students in school subjects, it is not the least re-strictive means and does not satisfy the requirement of the bal-ancing of interests.

(A) I agree only with the majority's finding as to the legislative background and intent of Article 3 contained in 1) Legislative back- ground and intent of Article 3 of (B) Unconstitutionality of Article 3in (3) of [Reasoning] 3. B. Review on Merits. I disagree with all other parts of the decision. I would like to state my opinion as tothe legitimacy of legislative purpose and the appropriateness of means.

(B) 1) In this society, one's academic backgrounds are perceivedto exercise far more influence on his or her employment, salaries,and social status than his or her merits. Parents are forced to payattention to extracurricular lessons which provide the force-feedingof knowledge through rote memory and the training on admissiontest questions, which are geared toward their children's admissions into higher-level schools. Our high interest in education has riseneven higher due to the relative sense of victimization that one's ownchildren will fall behind

other children who receive extracurricularlessons, and due to the sense of accomplishment that extracurricularlessons give advantages in intense races and facilitate admissionsinto better higher-level schools or better departments. As a result,parents have resorted to high-expenditure extracurricular lessonsbeyond their budget, leaving family finances damaged.

The frenzy in extracurricular lessons forces students into a lifecentering around examinations in or outside schools, in which goodgrades are all-important. They do not have a chance to developtheir individual specialties and interests. Their intellectual maturityis inhibited, and their growth into a creative person is undermined.The pressure about school grades has forced them into unstableemotional states and then to juvenile delinquency. The accumulatedmental and physical fatigue damages children's health, and childrenand parents equally ignore school education which is then conductedin a distorted manner. The destruction of school education is contra-dictory to 'the purpose of school education,' and leads to the lack ofa cooperative and community-oriented mind among students whofinish their middle and high schools without obtaining the wisdomof accommodating and living together with others.

The side-effects of the frenzy in extracurricular lessons do notstop there. Extracurricular lessons by incumbent middle or highschool teachers and college professors are difficult to detect, and areexpected to cause frequent irregularities in admissions and schoolgrades. Parents' economic resources become an important determi-nant of their children's chance for admission into higher-levelschools. The sense of alienation among people of different levels of income deepens.

2) In order to minimize the above educational and socialside-effects and ills and to restore normalcy to school education, werequired ordinary people (individuals) to establish and operate privateteaching institutes or lesson halls or to work there as instructors ifthey wanted to provide extracurricular lessons as part of a conti-nuous or repetitive income-generating activity (the Framework Acton Education, Articles 2(1) and (2) and 15). The exception forcollege (graduate) students was allowed as part of an educationalsubsidy (the same Act, Article 28(1)).

Founders and Managers of Private Teaching Institutes shall make efforts to provide learners with convenience, lighten their burden andprovide with equal opportunities (Article 4). They should meet therequirements prescribed in the Act, such as Purification of Edu-cational Environment (Article 5), Standards for Facilities (Article 8), Qualifications of Instructors (Article 9, 13).

Especially, Article 15 states the lecture fees shall be determined by

the founder etc., taking into account teaching contents, hours butthey shall be restricted by the Ministry of Education (According tothe 'Study,' the economic burdens felt by parents in relation to extracurricular lessons are 'a little burdensome' in 41.7%, 'veryburdensome' in 28.7%, and 'little burdensome' in 20.0%.). We know from experience that extracurricular lessons become more expensive and frenzied due to the social environment focusing more on schoolsthan merits, parents' overzealous educational fervor, inferior schooleducation, and admission system, but also in large parts due toprivate lessons, which are the subject matters of this case. Permit- ting private lessons to ordinary people is likely to make extracurric-ular lessons more expensive and frenzied, and the resulting side-effects will lead to uncontrollable social problems. The necessity of complete ban on private lessons must be acknowledged.

According to the Study, 50.9% of parents agreed with the main-tenance of the status quo supplemented by strengthened enforcement,and 40.7% with the complete ban. Only 6.1% called for complete emancipation. Additionally, 45.6% of the parents found the realitydemanding extracurricular lessons a little dissatisfactory in 45.6%,very satisfactory in 42.0%, and little dissatisfactory in 10.9%. The results are that of June 1997, but probably today's results will notbe very different.

3) A) The State by principle does not intervene in parents'education of their children in private education. It restricts only pri-vate lessons in order to normalize school education, a public project.However, even private lessons can be given by ordinary people byestablishing and operating private teaching institutes and lesson hallsor working there as instructors. Students can receive extracurric-ular lessons through school-administered supplementary education,lessons given by relatives in the same family register, private lessonsgiven by college (graduate) students, private teaching institutes, and arts lessons at lesson halls.

If private extracurricular lessons in school subjects are freelygiven to middle or high school students, as our past experience tellsus, students will be ranked more prominently by academic achieve-ment in school education, and therefore their free development ofpersonality and their growth into an autonomous person will beobstructed. An excessive frenzy necessarily leads to the escalationof lesson fees, denying equal protection in substantive educationalopportunity to those families unable to shoulder the fees. The major-ity finds it conforming to the constitutional ideology that parentsare on their own in deciding how much burden they will carry for children's private education. Such view justifies the discriminationagainst the children of low-income families. If the difference inacademic achievement depends not on the potential and efforts ofindividual students but on their parents' economic resources, it willturn education into a tool of solidifying social

inequality and passingthe same on to successive generations. However education is sup-posed to be a forum for dissolving social inequality, making changes and co-existing to reach an open society.

B) If, as the majority opinion finds, the ban is lifted on rela-tives' or neighbor housewives' lessons and prominent artists' privatelessons and therefore violates the principle of proportionality, such lessons of secret nature will interfere with the accomplishment ofthe legislative purpose and may threaten the public value of schooleducation. Given the public interest obtained by the ban on ex-tracurricular lessons, their inability to provide extracurricular lessonsand the resulting losses to them do not disturb the balance amongcompeting interests. The ban on extracurricular lessons on schoolsubjects to elementary school students causes undesirable physiolog-ical, emotional, and educational effects on them. The extracurricular lessons through computer communications emerged only recently andshould not be considered as a decisive factor for invalidating the ban.

This statutory provision does not seem to be unreasonable. Itwas a legislative attempt at harmony and compromise between schooleducation, the common tasks for the State and parents, on one hand,and extracurricular lessons, the sole jurisdiction of the parents, onthe other. The legislative decision must be respected. This statu-tory provision does adopt the regulatory method of prohibiting as the rule and permitting only in exceptions. However, this statutory pro-vision permits those extracurricular lessons that sufficiently supple-ment the academically challenged students, and bans only thoseprivate extracurricular lessons that are substantially likely to causesocial evils and side-effects.

A minor defect in the legislative format and content or a dif-ficulty or side-effect in the enforcement of law does not make this statutory provision unconstitutional.

C) The Constitutional Court already accepted Articles 71 and112-6 of the Enforcement Decree of the Education Act limitingadmissions to middle or high schools on the basis of residence as alegislative means to prevent the side-effects of the frenzy over ad-missions race. There, the Court found that the difference between urban areas and rural areas in the environment for secondary edu-cation is not severe, and that the Enforcement Decree includes vari-ous measures aimed at resolving the problems arising out of theadministration of a uniform system. Therefore, the Court held that,the legislative means is just and therefore does not infringe on the essential content of parents' right to educate children and does notrestrict the right excessively (7-1 KCCR 267, 91Hun-Ma204, February23, 1995)

Now, we do not leave college admission to the autonomy of col-leges but require them to follow the results (scores) of the College

Scholastic Ability Test. In light of our decision upholding the re-striction on parents' right to choose middle or high schools, weshould also uphold this statutory provision that restricted privateextracurricular lessons supplementary to school education. Whetherto allow private lessons should be decided in line with our attitudetoward the right to choose schools or the colleges' autonomy inadmissions.

(3) For these reasons, I find this statutory provision being gearedtoward the accomplishment of a educational and social policy goal,and also being equipped with the legitimacy of end as well as theappropriateness of means. It does not infringe on the essential con- tent of the basic rights of extracurricular lesson instructors, parents, and students.

Despite that, the majority decision invalidates this statutory pro-vision by pointing out the problems with the minimality of restric- tion and the balancedness of interests in the statutory provision asa means to the accomplishment of the legislative purpose. I do notfind the decision persuasive. Firstly, in relation to extracurricularlessons directly related to the publicly natured purpose of school edu-cation, the restriction on parents' right to educate children and thechildren's freedom of learning is a legislation aimed at policy goalsbased on Article 31(6) of the Constitution. As we examined above(A. (2) (A)), pursuant to the precedents of the Constitutional Court,the reasonableness of the discretion exercised in the legislative for- mation and the policy judgment is the standard of review. However,the majority states that the State cannot intervene in extracurricular lessons, which the majority believes to be subject to parents' powerin private education, and the State's intervention is allowed only inthe situation described below as the third point. This is question-able. Secondly, the majority seems to protect more strongly theeconomic right of extracurricular lesson instructors, namely the right to choose occupations, than the socially and economically weak with-out means to receive extracurricular lessons. Such lack of concernnegates the policy discretion of the legislature in endeavoring toaccomplish substantive equality and ignores the concept of publicinterest, a prerequisite to a restriction on basic rights. Thirdly, themajority states, the legislature can take legislative action, the effects of which are limited, for instance, to extracurricular lessons given forexorbitant fees, extracurricular lessons given by college professorsand others related to college admissions to those students preparingfor exams, extracurricular lessons given by school teachers to thosestudents whose student evaluations and grades they can influence,and other cases of threatening the fairness of admissions or causingother grievous social harms(3. B. (3) (B) 5) Sub-conclusion). Thisis because any legislative revision will not guarantee effectivenessdue to the secrecy of instructions.

C. Additional Notes

(1) We call the year 2000 opening to the new century the age ofinformation and communication (digital) revolution. While preoccu-pied with the relief efforts ensuing the foreign currency crisis in the so-called IMF (International Monetary Fund) period, which began inDecember 1997, our society is now facing the age of the growing number of the unemployed, the expanding number of the poor, thediminution of the middle class, and the polarization of wealth. Wehave a dire need to administer social security and social welfarepolicies to protect the substantive equality of people and thereby dis-solve the sense of alienation among different classes. Social stabil-ity and integration has never been more important than now. At the same time, we have no dispute on the fact that the economic systemof the new century runs on the basis of capitalism dependent onpeople's selfishness. Our task is how to adjust to or accommodatethe weakness of capitalism, the growing separation and discordbetween the classes, which grows as the rich are getting richer andthe poor are getting poorer, so that we can maintain and replenishthe sense of community.

Therefore, from the perspective of a social welfare state, it isunavoidable to affirmatively restrict the economic liberties of the so-cially strong, namely the right to property, freedom of contracts, andfreedom of occupations (the Constitution, Articles 23(2) and 37(2)).Through the restrictions, the socially and economically weak canenjoy the social rights stated in the Constitution (Articles 31 to 36)and then humane life.

(2) The important issues of this age is an educational revolutionand a human resources development policy as well as economic ones.An educational revolution and a human resources development policy is a necessary means for our survival.

However, school education, the womb and birth place of humanresources development, is about to be destroyed by the rapidly changing social phenomena and the side-effects of the CollegeScholastic Ability Test and extracurricular lessons. What is clear,adjusting the permitted scope of extracurricular lessons and revising the College Scholastic Ability Test amounts only to a localized, par-tial, and temporary cure and a symptomatic treatment. Such mea-sures can neither accomplish this age's dire demand, an educational revolution, nor quell the pending collapse of the educational institu- tions. Like other social institutions, schools now must confront thenew age and hasten broad curricular revision, improvements oneducational environment, and other reforms and repairs in order torespond to the rapidly changing social phenomena. Therefore, wemust reexamine all educational systems from kindergartens to grad-uate schools and

formulate a plan of reform befitting the newcentury.

(3) This statutory provision aims to normalize school education,the public good, by restricting elementary, middle, and high schoolstudents' private extracurricular lessons, which are related to school education, and accomplish equal opportunity in education. We valuenormalcy in school education more than anything else because of the immovable fact that school education is the place where the studentsdevelop their creativity, learn the concepts of liberties and responsi- bilities, and nurture their cooperative minds and sense of community needed for being democratic citizens.

The decision of unconstitutionality on this statutory provision is equivalent to unlimited permission of private extracurricular lessons.This is the time for the haves to restrain themselves and listen tothe cries of the socially and economically weak. In disregard to thisperiodic background and without any mention of the precedent con-cerning parents' right to choose schools, which is directly or indi- rectly related to extracurricular lessons, or of the legitimacy of theCollege Scholastic Ability Test, the majority believes it just to per- mit private extracurricular lessons. Such decision causes the feelingof deprivation and frustration to many parents and their children whobarely obtain extracurricular lessons from private teaching institutesor cannot even think about receiving extracurricular lessons, andmakes them feel tantalized and restricted by poverty. I am concernedthat this decision will cause the profound injuries on the youngones' minds. I only hope that my fears will prove groundless andunnecessary.

8. Reply of Justices Kim Yong-joon, Kim Moon-hee, Koh

Joong-suk, Shin Chang-on, and Ha Kyung-chull to

the Dissenting Opinion of Lee Young-mo

A. The dissent, in discussing extracurricular lessons, dividespeople into the socially and economically strong and the week. Italso divides capitalism and socialism (social welfare state), andliberty-rights and social rights. Then, the dissent speaks on behalf of the latter in each division, stating, it is unavoidable to affirma-tively restrict the economic liberties of the socially strong . . . . Through the restrictions, the socially and economically weak canenjoythe social rights . . . and then humane life.

The dissent applies the above logic directly to the issue of extra- curricular lessons. Those who can afford extracurricular lessons arethe former of the two groups, and those who cannot the latter. The dissent characterizes the position of unconstitutionality, namely thatof allowing extracurricular lessons in principle, as siding with the former group

and the position of constitutionality, namely that ofbanning extracurricular lessons, as siding with the latter. In viewof the principle of free democracy, the basic order of our country,such theory has a logical leap or is an opinion of bigotry.

B. The dissent misunderstands or ignores the following pointsmade by the majority decision.

The majority's position is not that the prohibition of high-expenditure extracurricular lessons is itself unconstitutional. It isthat the chosen means of suppressing high-expenditure extracurric-ular lessons is unconstitutional because it . . . excessively restrictspeople's basic rights. We accept the legitimacy of the purpose ofrestricting basic rights and the appropriateness of the means employ-ed. We yet find the statute in violation of the principle of propor-tionality because it does not satisfy the requirement of the leastrestrictive means and the balancing of interests. As concretely andclearly explained, even after we issue the decision of unconstitu-tionality the legislature can take legislative action, which bans extra-curricular lessons given for exorbitant fees, extracurricular lessonsgiven by college professors and others related to college admissionsto those students preparing for exams, extracurricular lessons to thestudents given by school teachers who can influence students' evalu-ations and grades, and other cases of threatening the fairness ofadmissions or causing other grievous social harms.

Despite that, the dissent insists that the decision of unconstitu-tionality on this statutory provision is equivalent to unlimited per-mission of private extracurricular lessons. The dissent then finds inthe decision of unconstitutionality a lack of concern for the sociallyand economically weak and a betrayal on substantive equality and the concept of public welfare. Also, according to the dissent, the major-ity decision corrupts the role of education, supposed to be a tool todissolve social inequality, into a vehicle of passing it on withinfamilies, and frustrates the socially and economically weak in a time that we need to listen to their cries.

C. Also, the dissent mentions the year 2000 opening to a newcentury, the age of information and communication (digital) revolution,so-called the important issue of this age, and educational revolutionand human resources development policy. The dissent especially em-phasizes on educational revolution, stating Adjusting the permittedscope of extracurricular lessons and revising the College Scholastic Ability Test amounts only to a localized, partial, and temporary cureand a symptomatic treatment. Such measures can neither accom-plish this age's dire demand, an educational revolution, nor quell thepending

collapse of the educational institutions. We do not find iteasy to understand how the above references are related to this case;or how they lend logical support to the opinion of constitutionalitythat extracurricular lessons should be banned; or how they can be-come the bases for criticizing the opinions of unconstitutionality.

Justices Kim Yong-joon(Presiding Justice), Kim Moon-hee, Lee Jae-hwa, Koh Joong-suk, Shin Chang-on, Lee Young-mo, Han Dae-hyun(Assigned Justice), and Ha Kyung-chull