Whether such affairs as securing a site for a school established and operated by a local government and paying a fee for the site are autonomous affairs, which are the inherent affairs of a local government (affirmative in principle), and whether unjust enrichment under the Civil Act may be established in a case where a local government arbitrarily uses state-owned property as a school site beyond the scope of

Article 31(2), (3), (4), and (6) of the Constitution of the Republic of Korea; Article 9(2)5(a) of the Local Autonomy Act; Article 12(1) and (2) of the Elementary and Secondary Education Act; Article 39(1) (see current Article 37(1)) of the former Local Education Autonomy Act (wholly amended by Act No. 8069, Dec. 20, 2006); Articles 40 (see current Article 38), 41(1) (see current Article 39(1)), 5(1), and 7(1) of the Framework Act on Education; Article 1 of the Local Education Subsidy Act; Article 741 of the Civil Act

Constitutional Court en banc Order 2004Hun-Ma3 Decided December 22, 2005 (Hun-Gong111, 80)

Republic of Korea (Attorney Kim Jong-seok, Counsel for defendant-appellant)

Busan Metropolitan City (Attorney Jin-Jin, Counsel for defendant-appellant)

Busan High Court Decision 2010Na7669 decided October 5, 2011

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 through 3

Article 31(2) of the Constitution of the Republic of Korea provides that "All citizens shall have the child under their care receive at least elementary education and education prescribed by law." Paragraph (3) of the same Article provides that "Compulsory education shall be provided without compensation." In addition, Paragraph (4) of the same Article provides that "the autonomy, speciality, political neutrality of education and the autonomy of university shall be guaranteed under the conditions as prescribed by Act." Paragraph (6) of the same Article provides that "The basic matters concerning the educational system including school education and lifelong education, the operation thereof, education finance and the status of teachers shall be determined by Act."

However, there is no conclusion that the State should bear the direct compulsory education expenses from Article 31(2) and (3) of the Constitution, and the State is not obliged to bear all the expenses due to the nature of compulsory education. Moreover, Article 31(4) and (6) of the Constitution delegates the formation of the educational system and the educational finance system to the legislator except as otherwise expressly provided for in the Constitution. As such, the legislators may seek several policy measures for the loyalty of education and education finance, taking into account various factors and circumstances such as the financial situation of the central government and local governments, level of compulsory education, etc. (see Constitutional Court en banc Decision 2004Hun-Ma3, Dec. 22, 2005).

Meanwhile, the Local Autonomy Act provides for the establishment, operation, and guidance of elementary schools, middle schools, and high schools (Article 9(2)5(a)), and the Elementary and Secondary Education Act provides that the State shall conduct compulsory education and shall take necessary measures, such as securing facilities for such education, and the local government shall establish and operate elementary schools and middle schools necessary to send all persons subject to compulsory education (Article 12(1) and (2)). In addition, the former Local Education Autonomy Act (wholly amended by Act No. 8069, Dec. 20, 2006) provides that the State and the local government shall bear the burden of compulsory education expenses (Article 39(1)); the State or the local government shall provide for the special account for educational expenses (Article 40); the State shall provide for the establishment of local government-invested educational institutions and the local government shall ensure the balanced operation of education expenses within the scope of its budget (Article 12(1)1); and the State and the local government shall provide for the State and local government-funded educational institutions to secure the State and local education budget (Article 7).

In full view of the above provisions and the purport of the above provisions, the affairs such as securing sites and paying fees for the site established and operated by a local government are autonomous affairs, which are inherent affairs of a local government, which are the subject of local education autonomy, unless there are special circumstances. The State is obligated to provide financial support to local governments that realize local education autonomy within the scope of law and budget. If a local government uses state-owned property as a school site without any legal cause beyond the scope of support of such state, unjust enrichment can be established under the Civil Act.

The court of first instance, cited by the court below, acknowledged the fact that the defendant occupied and used the land of this case as a school site without obtaining approval for use from the plaintiff or concluding a loan contract, and the defendant occupied and used the land of this case without any legal ground and suffered loss to the plaintiff as the owner. Thus, the defendant is obligated to return unjust enrichment to the plaintiff, barring any special circumstances.

In light of the above legal principles and records, the above judgment of the court below is acceptable, and there is no error of law by misunderstanding legal principles as to unjust enrichment as otherwise alleged in the ground of appeal.

2. As to the fourth ground for appeal

After compiling the adopted evidence, the first instance court, cited by the court below, recognized the facts as a whole, and rejected the defendant's assertion as to confusion since the plaintiff's right to claim for return of unjust enrichment against the defendant and obligation to provide financial resources under the Local Education Subsidy Act are not arising from the same legal relationship, but all separate rights and obligations corresponding to each other, and thus, both parties do not cause confusion because they belong to the plaintiff. In light of the relevant legal principles and records, such recognition and determination are acceptable, and there is no violation of the misapprehension of legal principles as to confusion.

3. As to grounds of appeal Nos. 5 and 6

Examining the reasoning of the judgment below in light of the records, we affirm the judgment below that the plaintiff's exercise of the right to return unjust enrichment of this case does not constitute an unfair exercise of rights or abuse of rights against the principle of trust and good faith, and there is no error of law by misapprehending the legal principles

4. As to ground of appeal No. 7

In light of the records, the court below's rejection of the defendant's assertion that the defendant's possession of the land in this case is a legitimate possession based on delegation of authority by the office of general administration of State property, since there is no evidence to prove that the defendant managed and used the land in this case as school site or educational property under the authority delegated by the office of general administration of State property

5. Conclusion

The appeal is dismissed, and the costs of appeal 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 Yong-deok (Presiding Justice)