[1] Whether a lawsuit by the competent Minister seeking revocation of a corrective order issued to a City/Do pursuant to Article 169(1) of the Local Autonomy Act is permissible (negative)

[2] The nature of affairs related to the preparation of school life records conducted by the head of a school, and whether the guidance and supervision affairs related to the preparation of school life records by the superintendent of an office of education are delegated to the office of education (affirmative)

[1] Article 169(2) of the Local Education Autonomy Act, which applies mutatis mutandis under Article 3 of the Local Education Autonomy Act, provides that a lawsuit may be brought only against cancellation or suspension of an order or disposition concerning autonomous affairs, and that the competent Minister may file a lawsuit with the Supreme Court against a corrective order issued to a City/Do pursuant to Article 169(1) of the Local Autonomy Act. Thus, a lawsuit seeking cancellation of a corrective order is not allowed.

[2] According to the provisions of the Elementary and Secondary Education Act, the Higher Education Act, and the Enforcement Decree of each Act, where a student transfers his/her school life records to a different City/Do or to a different City/Do, a systematic and uniform management of school life records is required. Where a middle student enters a high school located in another City/Do, the school life records shall be reflected in high school entrance screening, and where a high school student uses school life records as admission screening data for universities under the direction and supervision of the Minister of Education. Thus, the affairs related to the preparation of school life records conducted by the head of each school shall be conducted uniformly for the overall interest of the people.

Therefore, the supervisory authority's guidance and supervision of affairs concerning the preparation of school life records that require uniform management on a national scale shall be deemed to be affairs of the nature to be conducted uniformly for the benefit of all citizens. Therefore, the guidance and supervision affairs of the superintendent of education on the preparation of school life records conducted by the head of public and private schools are affairs delegated to the superintendent of education as national affairs.

[1] Article 3 of the Local Education Autonomy Act, Article 169(1) and (2) of the Local Autonomy Act / [2] Articles 9(4), 17, 6, 25, and 47(2) of the Framework Act on Education, Article 82 of the Enforcement Decree of the Elementary and Secondary Education Act, Article 34(2) of the Higher Education Act, Article 35 of the Enforcement Decree of the Higher Education Act, Articles 9 and 102 of the Local Autonomy Act

[1] Supreme Court Decision 2010Da42 Decided January 27, 2011

Gyeonggi-do Office of Education (Law Firm Dasan et al., Counsel for the plaintiff-appellant)

(2) The Minister of Education (Attorney Cho Jae-sik et al., Counsel for the plaintiff-appellant)

December 12, 2013

All of the instant lawsuits are dismissed. Costs of lawsuit are assessed against the Plaintiff.

The defendant's corrective order dated August 23, 2012 and the revocation disposition ex officio on August 27, 2012 shall be revoked against the plaintiff in relation to the entry of school violence aggressors in school violence.

1. Reasons for the instant corrective order and ex officio revocation disposition;

The following facts may be acknowledged in the absence of dispute between the parties, or by taking account of the overall purport of the pleadings in each entry in Gap evidence Nos. 1 through 25, Eul evidence Nos. 1 and 4 (Additional Number omitted).

(a) Amendment of the defendant's school records and management guidelines;

1) On January 27, 2012, the Defendant: (a) recorded the measures to be taken against the aggressor student of the Committee on Countermeasures against School Violence as stipulated in each subparagraph of Article 17(1) of the Act on the Prevention of and Countermeasures against Violence in Schools; and (b) revised the Guidelines for the Preparation and Management of School Records by Ordinance of the Ministry of Education, Science and Technology to provide guidance and access to higher level of schools; and (c) revised the Guidelines for the Management of School Records as follows.

A) Method of entering school life records

In the column of the special engineer of the “school record”, the transfer to another school, the expulsion from school, the special education course, or the psychological treatment, the suspension of attendance for not more than ten days, the suspension of attendance in the column of “act characteristics and comprehensive opinions” shall be written apology, the prohibition of contact, intimidation, and retaliation, the service at school, and the replacement of class, respectively.

(b) the preservation period of school life records;

Measures to be taken against aggressor students recorded in school records shall be preserved for five years after graduation, and high schools shall be preserved for ten years.

2) On June 29, 2012, the Defendant re-amended the Guidelines for the Preparation and Management of School Records by the Ministry of Education, Science and Technology Directive No. 257, thereby changing the preservation period of school life records from 10 years to 5 years after graduation, as in the case of high schools, as in the case of elementary schools and middle schools.

B. The Plaintiff’s reserved land in this case

On February 15, 2012, the Plaintiff requested the Defendant to reconsider the records of school violence disciplinary action. In addition, on July 9, 2012, the National Human Rights Commission held a total policy recommendation for the creation of human rights-friendly school culture and made a decision on the “comprehensive policy recommendation for the creation of human rights-friendly school culture.” In that context, the provision that “the entry of school violence records, such as the introduction of the deletion review system or the interim deletion system prior to graduation, should be amended so as to prevent any other human rights violations.”

On the basis of this, the Plaintiff sent to the Office of Education and each school in the jurisdiction of August 9, 2012, a public letter stating that “Until the future policies of the Office of Education, Science and Technology and the Gyeonggi-do Office of Education have been established, the record of school violence in each school shall be withheld” (hereinafter “the time reserved land in this case”).

C. The instant corrective order and ex officio revocation disposition

On August 16, 2012, the Defendant notified the National Human Rights Commission of the policy recommendations on the “Recommendation on the Entry in School Violence” among the “Recommendation on Comprehensive Policy for the Creation of Human Rights-Friendly School Culture,” and issued a corrective order to the Ministry of Education and Human Rights (hereinafter “instant corrective order”) to the effect that (i) the Plaintiff’s order to withhold the entry of school records notified to the school office of education on August 23, 2012, and (ii) the Defendant issued a corrective order to submit it to the Ministry of Education and Human Rights (hereinafter “instant corrective order”) by August 24, 2012, to the school and the Office of Education to record the aggressor student in school records pursuant to statutes.

As the Plaintiff did not comply with the instant corrective order, on August 27, 2012, the Defendant revoked ex officio the Plaintiff’s reserved land at the time of the instant case on the ground that the principal’s issue was a matter to be prepared and managed in accordance with Article 25 of the Elementary and Secondary Education Act, and that it was not a matter to be determined arbitrarily by the Superintendent of an Office of Education (hereinafter “instant ex officio revocation disposition”).

2. Whether the part concerning the claim for revocation of corrective order among the lawsuit of this case is legitimate

Article 169(2) of the Local Autonomy Act, which applies mutatis mutandis under Article 3 of the Local Education Autonomy Act, provides that a lawsuit may be brought only against cancellation or suspension of an order or disposition concerning autonomous affairs, and the competent Minister does not provide that a lawsuit may be brought to the Supreme Court with respect to a corrective order issued to a City/Do pursuant to Article 169(1) of the Local Autonomy Act, and thus, a lawsuit seeking cancellation of such corrective order shall not be allowed (see Supreme Court Decision 2010Du42, Jan. 27, 201).

Therefore, the Plaintiff’s lawsuit seeking revocation of a corrective order issued by the Defendant on August 23, 2012 pursuant to Article 169(1) of the Local Autonomy Act, on the ground that the Plaintiff’s order on August 9, 2012, which was issued on August 23, 2012, to withhold the record of the measures taken against the aggressor student in school violence, is unlawful as it is not allowed in light

3. Whether the part concerning the claim for revocation of ex officio revocation is legitimate among the lawsuit of this case

A. The subject matter of a lawsuit under Article 169(2) of the Local Autonomy Act is limited to the cancellation or suspension of an order or a disposition concerning autonomous affairs, and thus, first, it is deemed that the guidance and supervision on the preparation of school life records of the superintendent of education is autonomous affairs or is delegated to the superintendent of education as a state affairs.

1) In order to determine whether a legal affairs are autonomous affairs or an agency’s delegated affairs, the form and purport of the provision of the relevant Act and subordinate statutes shall be first considered in order to determine whether such affairs are autonomous affairs or an agency’s delegated affairs. However, other matters, such as whether the nature of the affairs requires a nationwide uniform process, the burden of expenses related thereto, and who is the subject of final responsibility (see, e.g., Supreme Court Decisions 2002Du10483, Apr. 22, 2003; 201Du566, May 23, 2013).

2) Article 17 of the Framework Act on Education provides that “The State and local governments shall guide and supervise schools and social educational facilities,” and does not provide clear criteria for distinguishing between the affairs of the State and the affairs of local governments among the affairs of guidance and supervision of schools. Furthermore, Article 6 of the Elementary and Secondary Education Act provides that national schools (the Minister of Education has changed to the Minister of Education according to the amendment of the Government Organization Act on March 23, 2013) shall be subject to guidance and supervision by the Minister of Education (the Minister of Education has changed to the Minister of Education). Public and private schools shall be subject to guidance and supervision by the Superintendent of an Office of Education, by providing that public and private schools shall be subject to guidance and

3) According to Article 25 of the Elementary and Secondary Education Act, the head of a school shall prepare and manage data prescribed by Ordinance of the Ministry of Education in accordance with the standards prescribed by Ordinance of the Ministry of Education within the scope necessary for educational purpose, such as personal information, school records, attendance status, status of obtaining qualification and certification, status of learning development, behavior characteristics and comprehensive opinion, and other matters prescribed by Ordinance of the Ministry of Education, by comprehensively observing and evaluating the academic achievement degree, personality (personal personality), etc. of the students, and the head of the school shall prepare and manage such data by using an educational information system (Paragraph 2), and the head of the school shall deliver such data to the head of the school to which the student transferred, if the student is transferred (Paragraph 3).

In addition, according to Article 47 (2) of the Elementary and Secondary Education Act and Article 82 of the Enforcement Decree thereof, the records of the school life register of a middle school are reflected in the entrance screening of high school and the second group of schools. According to Article 34 (2) of the Higher Education Act and Article 35 of the Enforcement Decree thereof, the head of a university may utilize the records of the school life register of a high school as admission screening data to select new students.

According to the provisions of the Elementary and Secondary Education Act, the Higher Education Act, and the Enforcement Decree thereof, where any student transfers his/her school life records differently to a City/Do or differently from a national school, public or private school, the systematic and uniform management of the school life records is required, and where a middle student enters a high school located in another City/Do, the school life records shall be reflected in the admission process of high schools, and the school life records of high school students shall be used as admission screening data of universities under the defendant's instruction and supervision. Thus, the affairs related to the preparation of school life records conducted by the principal of a school shall be conducted uniformly for the overall interest of the people.

4) Therefore, it is reasonable to interpret that the supervisory office’s guidance and supervision affairs concerning the preparation of school life records conducted by the head of a public and private school is the affairs delegated to the superintendent of education as the state’s affairs. Furthermore, Article 6 of the Elementary and Secondary Education Act, which provides that the direction and supervision affairs concerning the preparation of school life records conducted by the head of a public and private school, belong to the superintendent of education as an autonomous affairs, and provides that the direction and supervision affairs concerning matters that need to be handled uniformly across the country are subject to the authority of the superintendent of education. Meanwhile, it is difficult to view that the state affairs, which are the guidance and supervision affairs for matters that need to be handled uniformly across the country, are handled with the authority of the superintendent of education delegated by the State. In addition, it is difficult to regard the “guidances of elementary schools, middle schools, and high schools” as one of the affairs concerning the promotion of education, sports, culture, and arts, which are local governments.

B. Thus, the instant ex officio revocation disposition is deemed to be conducted with respect to the delegated affairs of the agency. Thus, it does not constitute cancellation or suspension of an order or disposition pertaining to autonomous affairs, and thus does not constitute a subject to which a lawsuit under Article 169(2) of the Local Autonomy Act may be instituted. Therefore, this part of the lawsuit is unlawful.

4. Conclusion

Therefore, all of the instant lawsuits are dismissed, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)