Matters that a local government may enact by municipal ordinance (i.e., autonomous affairs, organization delegated affairs), and standards for determining whether affairs prescribed by the head of a local government by municipal ordinance are autonomous affairs or delegated affairs of an agency / Whether the authority of the superintendent of education concerning the appointment of temporary directors of a private elementary school, middle school, high school, or school that establishes and operates various equivalent schools

According to Articles 22 and 9 of the Local Autonomy Act, matters for which a local government may enact municipal ordinances are limited to autonomous affairs, which are the inherent affairs of the local government, and those delegated to the local government pursuant to individual Acts and subordinate statutes. In principle, matters concerning State affairs delegated to the head of the local government or affairs entrusted to the head of the subordinate local government, in principle, do not fall within the scope of the enactment of municipal ordinances. In determining whether affairs prescribed by the head of the subordinate local government are autonomous affairs or affairs entrusted to the head of the subordinate local government, priority should be given to the forms and intent of the relevant Acts and subordinate statutes in determining whether such affairs are autonomous affairs or affairs entrusted to the head of the subordinate local government.

Examining the forms and purport of the relevant provisions of the Local Autonomy Act, the Local Education Autonomy Act, and the Private School Act, and the details and nature of the system for the selection and appointment of temporary directors in light of the legal principles as seen earlier, it is reasonable to view that the authority of the superintendent of education on the selection and appointment of temporary directors of private elementary schools, middle schools, high schools,

Articles 9 and 22 of the Local Autonomy Act, Articles 2 and 18(1) of the Local Education Autonomy Act, Articles 4(1) and (3), 24-2(4), and 25(1) of the Private School Act

Supreme Court Decision 2011Du12153 Decided April 11, 2013 (Gong2018Sang, 85) Supreme Court Decision 2016Du5162 Decided December 5, 2017 (Gong2018Sang, 2015)

Plaintiff (Law Firm ELBS Partners, Attorneys Lee Young-soo et al., Counsel for the plaintiff-appellant)

The head of the Gyeonggi-do District Office of Education (Law Firm Dasan, Attorneys Choi Jong-tae et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2018Nu77618 decided October 29, 2019

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to Articles 22 and 9 of the Local Autonomy Act, matters for which a local government may enact its municipal ordinances are limited to autonomous affairs, which are the affairs inherent in the local government, and those delegated to the local government pursuant to individual statutes. In principle, matters concerning the affairs delegated by the head of the local government or delegated by the head of the higher local government to the head of the local government does not fall under the scope of the enactment of the municipal ordinances. In determining whether the affairs required by the head of the local government are autonomous affairs or delegated affairs of the lower local government, priority should be given to the forms and intent of the relevant statutes. However, in addition, whether the nature of the affairs requires a uniform operation on a national scale, or whether the affairs require the performance of the affairs, and the subject of the burden of expense and the subject of the ultimate responsibility (see, e.g., Supreme Court Decision 201

2. Examining the forms and purport of the relevant provisions of the Local Autonomy Act, the Local Education Autonomy Act, and the Private School Act, and the contents and nature of the provisional director selection and appointment system in light of the legal principles as seen earlier, it is reasonable to deem that the authority of the Superintendent of an Office of Education concerning the selection and appointment of temporary directors of private elementary schools, middle schools, high schools, and school foundations that establish and operate various

A. The Local Autonomy Act provides for the establishment, operation and guidance of elementary schools, middle schools, and high schools, etc. (Article 9(2)5(a)) while prescribing the affairs concerning the promotion of education, sports, culture, and arts as the autonomous affairs of local governments (Article 9(2)5(a)). The Local Education Autonomy Act provides that the affairs concerning education, science, technology, sports, and art of local governments shall be those of the Special Metropolitan City, Metropolitan City, and Do (hereinafter “City/Do”), and the affairs concerning local governments shall be those of the Special Metropolitan City, Metropolitan City, and Do (hereinafter “City/Do”). The Act provides that the superintendent of education shall be placed in the City/

B. Article 4(3) of the Private School Act provides that the Minister of Education shall guide and supervise private universities and colleges, industrial colleges, cyber colleges, junior colleges, technical colleges, and various equivalent schools, and school foundations establishing and operating them (hereinafter “university corporations, etc.”) as competent authorities (Article 4(3)); and that the Superintendent of an Office of Education shall guide and supervise elementary schools, middle schools, and high schools, and various equivalent schools; and that school foundations establishing and operating them (hereinafter “non-university corporations, etc.”) as competent authorities (Article 4(1)); and the competent authorities shall appoint temporary directors upon the request of interested parties or ex officio (hereinafter “mediation committee”); and the selection and appointment of temporary directors such as university corporations shall be prescribed by the Minister of Education as affairs of the Minister of Education; and temporary directors such as non-university corporations, etc., as affairs of the Superintendent of an Office of Education, respectively.

At the time when the Private School Act was enacted by Act No. 1362 on June 26, 1963, Article 28 of the Enforcement Decree of the Private School Act (amended by Presidential Decree No. 19546, Jun. 23, 2006) stipulates that a provisional director of a school juristic person shall be appointed by the Minister of Education and Human Resources Development, the Minister of Education and Human Resources Development, the Minister of Education and Human Resources Development, and the Minister of Education, Science and Technology following the reorganization of government organization. However, as a result of the amendment by Act No. 7802 on December 29, 2005, a right to appoint a provisional director of a non-university juristic person, etc. shall be vested in the Minister of Education and Human Resources Development, and accordingly, the Minister of Education and Human Resources Development deleted the items concerning the appointment of a provisional director from among the affairs that

C. Under Article 25 of the Private School Act, where the purpose of a school juristic person is not achieved or is likely to cause damage due to the vacancy of directors, the appointment of ad hoc director is to appoint a risk management person who is temporarily in charge of its operation based on the authority of guidance and supervision. Since the appointment of ad hoc director requires specific and individual consideration of the characteristics of each region and each school, the nature of the affairs is difficult to be considered as affairs that require uniform handling on a national scale.

Meanwhile, the Private School Act stipulates that when the Superintendent of an Office of Education exercises the authority to appoint temporary directors of non-university corporations, etc., he/she shall comply with the results of deliberation by the Mediation Committee belonging to the Minister of Education (Articles 25(1) and 24-2(4)). However, this is a system introduced to resolve conflicts and conflicts in private school sites and realize the transparency and rationality of private school operation, which provides that when the Superintendent of an Office of Education exercises the authority to appoint temporary directors of non-university corporations, etc., the affairs concerning the authority to appoint temporary directors of non-university corporations, etc. shall not be deemed to fall under national affairs.

3. Thus, the provisions of this case concerning the selection and appointment of temporary directors of private school corporations which establish and operate a middle school among the powers of the superintendent of education of Gyeonggi-do cannot be deemed to have exceeded the scope of the legislative authority of the Municipal Ordinance. Nevertheless, the court below held that the authority of the superintendent of education concerning the selection and appointment of temporary directors of non-university corporations, etc. is the authority concerning the delegated affairs of the institution, and the provisions of this case concerning the appointment of temporary directors of the non-university corporations, etc. are invalid beyond the scope of the legislative authority of the Municipal Ordinance since they are limited to the delegated affairs of the institution, and invalid dispositions based on the provisions of this case

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)