[1] The scope of matters that a local government may enact, and the standard for determining whether the affairs that the head of a local government requires to process is autonomous affairs or delegated state affairs

[2] Whether matters concerning the status of teachers are state affairs (affirmative)

[3] In a case where the Superintendent of an Office of Education requested reconsideration of the Ordinance on School Autonomy of Gwangju Metropolitan City, which provides for the matters to be deliberated upon by a public school to deliberate on matters concerning teachers' personnel affairs, according to the direction of the Minister of Education to request reconsideration, but the City Council re-decided as the original design, the case holding that the Ordinance was unlawful as it prescribed by the Ordinance without delegation of statutes as to national affairs, which goes beyond the limit

[1] Articles 9 and 22 of the Local Autonomy Act / [2] Articles 9 and 22 of the Local Autonomy Act / [3] Article 31(6) of the Constitution of the Republic of Korea; Article 43(2) of the Educational Officials Act; Articles 43(1) and 56(1) of the Private School Act; Articles 3 and 7(1) of the Special Act on the Improvement of Status of Teachers and the Protection of Educational Activities; Article 6 of the former Regulations on Honorable Treatment of Teachers (Amended by Presidential Decree No. 27418, Aug. 2, 2016; Article 6 of the Enforcement Decree of the Special Act on the Improvement of Status of Teachers and the Protection of Educational Activities; Article 6-2 (see Article 6-2 of the Enforcement Decree of the Special Act on the Improvement of Status of Teachers and the Protection of Educational Activities; Article 7 of the Framework Act on Education; Article 1, Article 5, Article 5-2 of the Local Education Subsidy Act; Article 25(2)2 of the Local Education Autonomy Act

[1] Supreme Court Decision 99Du30 Decided September 17, 199 (Gong199Ha, 2226), Supreme Court Decision 201Du12153 Decided April 11, 2013 / [2] Supreme Court Decision 2012Du145 (Gong2014Sang, 736) Decided February 27, 2014

(2) The Minister of Education (Attorney Choi Jae-soo, Counsel for the plaintiff-appellant)

Gwangju Metropolitan City Association (Law Firm Namsan, Attorneys Jung-min et al., Counsel for the defendant-appellant)

November 24, 2016

A re-resolution made by the Defendant on March 14, 2013 against the Ordinance concerning the Government-Governing Province of Gwangju Metropolitan City shall have no effect. Litigation costs shall be borne by the Defendant.

The same shall apply to the order.

1. Re-resolution of the Ordinance of this case and a summary of its contents

The following facts may be acknowledged in full view of the purport of the entire pleadings in each statement of Gap evidence Nos. 1, 2, 3, and 4 (Additional Nos. 4).

(1) On January 31, 2013, the Defendant adopted the Gwangju Metropolitan City Ordinance on School Autonomy (hereinafter “instant Ordinance”). On February 20, 2013, the Plaintiff issued a request for reconsideration to the superintendent of education of Gwangju Metropolitan City for the reason that “the instant Ordinance requires the establishment of a specific organization to a school without explicit delegation of statutes, and is unlawful, and it may interfere with the organization under the Elementary and Secondary Education Act and its functions and thus undermine the public interest.” Accordingly, the superintendent of education of Gwangju Metropolitan City issued a request for reconsideration of the instant Ordinance on February 21, 2013. However, the Defendant re-decided the original Ordinance as it is, on March 14, 2013.

(2) The proposed ordinances of this case guarantee the right of students, parents, teachers, and employees to participate in school operation (Article 1); the purpose of the proposed ordinances of this case is to have teachers’ association, student’ association, parents’ association, and employees’ association as autonomous organizations (Article 4); and the school teachers’ association (Article 5); the student’s association (Article 6); the student’s association (Article 7); the school affairs council (Article 8); the school affairs council (Article 9); the establishment of teachers’ personnel advisory committee (Article 10); and the matters to be deliberated on by each autonomous organization.

2. Validity of the Ordinance of this case

(1) According to Articles 22 and 9 of the Local Autonomy Act, matters that a local government may enact municipal ordinances are limited to autonomous affairs, which are the affairs inherent in the local government, and those delegated to the local government under individual Acts and subordinate statutes, and matters concerning the affairs delegated to the head of a local government or delegated to the head of a subordinate local government, in principle, do not fall under the scope of the enactment of municipal ordinances. Furthermore, in order to determine whether the affairs prescribed by the head of a subordinate local government are autonomous affairs or the affairs entrusted to the head of a subordinate local government, the form and purport of the relevant Acts and subordinate statutes shall be first considered. However, in addition, the determination shall also be made by taking into account whether the nature of the affairs requires uniform performance on a national scale, the burden of expenses related thereto, and the subject of final responsibility (see Supreme Court Decisions 9Do30, Sept. 17, 199; 2011Du153, Apr. 11, 2013).

(2) Article 10(1) of the Ordinance provides for a public school to deliberate on matters concerning teachers’ personnel management. Article 10(2) of the Ordinance provides for matters concerning teachers’ personnel management, such as assignment within the school as a matter of deliberation by the teachers’ personnel management advisory committee (Article 10(1)1), matters concerning the selection of persons to be transferred to the school following the reduction of the number of school personnel (Article 2(2)2), matters concerning the reward of teachers (Article 3) and other matters concerning personnel management of the relevant school (Article 10(4)4). In addition, Article 10 of the Ordinance provides for matters concerning teachers’ personnel management of the relevant school (Article 10) shall be directly elected by the teachers’ personnel management advisory committee from among the relevant school teachers, and the head of the school shall be appointed (Article 3(4)), the principle of teachers’ personnel management and the organization and operation of the teachers’ personnel management advisory committee shall respect the opinion of the teachers’ personnel management advisory committee (Article 5(5))).

(3) However, as seen below, matters concerning the status of teachers need to be determined by law in a uniform manner, and the State bears considerable expenses for this purpose, the relevant affairs ought to be deemed state affairs (see Supreme Court Decision 2012Da145, Feb. 27, 2014).

① Article 31(6) of the Constitution provides that fundamental matters concerning the status of teachers shall be prescribed by the Act in order to ensure the effective guarantee of fundamental rights to be educated by citizens. Here, matters concerning the status of teachers refer to matters concerning the acquisition, maintenance, loss, etc. of status, such as qualifications, appointment, remuneration, service, guarantee of status, guarantee of rights, disciplinary action, etc. of teachers.

(2) As to the guarantee of the status of teachers, Article 43 (2) of the Public Educational Officials Act provides that “no teacher shall be demoted, temporarily laid off, or dismissed against his/her will without a sentence, disciplinary action, or any other cause as determined by the Public Educational Officials Act,” and Article 56 (1) of the Private School Act provides that “No teacher of a private school shall be subject to any unfavorable disposition, such as temporary retirement or dismissal from office against his/her will unless he/she is subject to a sentence, disciplinary action, or any other cause as determined by the Private School Act.” In addition, the Ministry of Education shall have an appeals review committee for teachers for the examination of disciplinary action and other unfavorable disposition against his/her will (Article 7 (1) of the Special Act on the Improvement of Teachers’ Status and the Protection of Educational Activities), it shall have the School Education Authority Protection Committee and the City/Do Office of Education establish a City/Do Educational Authority Protection Committee (Articles 6 and 6-2 of the Regulations on Honorable Treatment of Teachers).

③ The State and local governments should establish and implement a policy necessary to secure educational finance stability (Article 7 of the Framework Act on Education). In this regard, the State and local governments enacted the Local Education Subsidy Act for the purpose of promoting the balanced development of education by providing all or some of the financial resources necessary for the establishment and management of educational institutions of local governments. This provision provides that the Minister of Education grants general subsidies and special subsidies to local governments (Articles 1, 5, and 5-2 of the Local Education Subsidy Act). In addition, Article 3 of the Special Act on the Improvement of Teachers’ Status and the Protection of Educational Activities provides that the State and local governments shall give special preferential treatment to teachers’ remuneration to teachers; Article 43(1) of the Private School Act provides that the State and local governments shall maintain the level of remuneration of teachers of the relevant schools; and Article 43(1) of the Private School Act provides that the State and local governments may grant subsidies or provide other subsidies for the support of private school education,

④ Article 9(2)5 of the Local Autonomy Act provides that the duties concerning the promotion of education, sports, culture, and arts shall be the duties of local governments. Article 2 of the Local Education Autonomy Act provides that the duties concerning education, art, and science of a local government shall be the duties of the Special Metropolitan City, Metropolitan City, and Do, but the status of teachers shall not be prescribed.

(4) Therefore, Article 10 of the Ordinance provides that a public school personnel management advisory committee shall be established in order to deliberate on matters concerning teachers' personnel management, and the matters to be deliberated shall be determined by the Ordinance without delegation of the Act and subordinate statutes concerning the state affairs, which goes beyond the bounds of the legislative authority of the Ordinance.

3. Conclusion

As long as Article 10 of the Ordinance of this case does not take effect as illegal, the re-resolution of the Ordinance of this case shall be denied in its entirety. Accordingly, the Plaintiff’s claim seeking the exclusion of the validity of the re-resolution shall be accepted, and the costs of litigation shall be borne by the losing party. It is so decided as per Disposition by the assent of all

Justices Lee Sang-hoon (Presiding Justice)