[1] Whether Article 15(4) of the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons, which provides that the Superintendent of an Office of Education may order the adjustment of tuition fees, is unconstitutional (negative)

[2] The meaning of "excess tuition fees, etc.," which is the requirement for issuing an order of coordination under Article 15 (4) of the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons, and the standard for determining whether tuition fees of an individual private teaching institute are excessive

[3] The case holding that an order to adjust tuition fees is unlawful in a case where the head of an office of education delegated by the superintendent of education issued an order to adjust tuition fees within the scope of the above upper limit of tuition fees with the contents that exceed the upper limit of tuition fees determined by the office of education by referring to the recent inflation rate, etc.

[1] Under Article 15 (4) of the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons, the system for adjustment of tuition fees for private teaching institutes under the above provision of Article 15 (4) of the Act on the Establishment and Operation of Private Teaching Institutes provides excessive tuition fees beyond the appropriate scope of tuition fees so as to reduce the economic burden of parents due to the collection of excessive private education fees, to make the people receive private education in an equal degree, and reduce the waste of human and material caused by abnormal educational investment, and, in principle, the legitimacy of legislative purpose and the suitability of the means is recognized. In principle, the pertinent private teaching institute’s establishment and operator can order adjustment of tuition fees only in cases where the tuition fees are deemed excessive compared to proper tuition fees. Thus, it cannot be deemed that excessive restriction of the basic rights of the founders and operators of private teaching institutes, while the public interest pursuing this system satisfies the legal interests of the founders and operators of private teaching institutes by reducing private education fees, minimizing discrimination in private education, reasonable allocation of educational resources, etc., and thus, it cannot be deemed unconstitutional or unconstitutional.

[2] In full view of the relevant provisions and legislative purport of Articles 4(1), 15(1), 15(2), 15(3), and 15(4) of the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons, the term “excess of tuition fees, etc.” as referred to in Article 15(4) of the said Act means that the tuition fees of the said private teaching institute are excessive to such an extent that it cannot be socially acceptable compared to reasonable tuition fees. Thus, whether the tuition fees of an individual private teaching institute are excessive should be determined at an appropriate level based on the research and examination of factors affecting the level of tuition fees, such as the economic situation in Korea, national income level, price level (consumer price, prices of living things, prices of education, etc.), current state of private education in Korea as a whole, current state of private education in the relevant office of education, as well as general factors such as the type, size and facility level of the private teaching institute, contents and time of the teaching school, the number of students, tuition fees, etc., and the status of private teaching institutes within the pertinent office of education.

[3] In a case where an order of adjustment of tuition fees was issued to a private teaching institute which was delegated by the superintendent of the district office of education to collect tuition fees within the scope of the above upper limit of tuition fees with the contents exceeding the upper limit of tuition fees determined by the superintendent of the district office of education by referring to the recent inflation rate, etc., the case holding that the above upper limit of tuition fees cannot be determined as a basis to determine whether tuition fees of the private teaching institute fall under the requirement of "excess of tuition fees, etc." as provided by Article 15 (4) of the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons, on the ground that the above upper limit of tuition fees is set as the basis of the existing upper limit of tuition fees and the price data of the statistical office or the upper limit of tuition fees in other jurisdiction without examining and examining various factors affecting the level of tuition fees, and that the above upper limit of tuition fees determined by the said private teaching institute exceeds the upper limit of tuition fees by at least 20% (in case of debate, at least 125%, and 200%).

[1] Article 15(4) of the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons; Articles 15, 23, and 119(1) of the Constitution / [2] Article 15(4) of the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons / [3] Article 15(4) of the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons

Plaintiff Co., Ltd. (Attorney Cho Yong-sik, Counsel for the plaintiff-appellant)

Seoul Southern District Office of Education (Attorney Jeon Young-soo, Counsel for the defendant-appellant)

April 13, 2010

1. On December 10, 2009, the order issued by the Defendant to adjust the tuition fees for a private teaching institute against the Plaintiff is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The text shall be as shown in the text.

1. Details of the disposition;

A. The Plaintiff is a company that aims to operate a private teaching institute and operates the Geumcheon-gu Seoul Metropolitan Government ○○ Building 4, 6, and 7 to educate high school students for general curriculum (hereinafter “△△△△△△△△”).

B. On July 21, 2009, the Defendant decided to set the upper limit of tuition fees for the Seoul Metropolitan Office of Education in 2009 (hereinafter “instant standard”), such as the upper limit of tuition fees for the Seoul Metropolitan Office of Education in 2009, with the content that the upper limit of tuition fees for the private teaching institutes within the jurisdiction is raised from 73.65 won to 105.83 won per subdivision, by opening the Seoul Metropolitan Office of Education and deliberation of the upper limit of tuition fees for the private teaching institutes within the jurisdiction. The Defendant decided to raise the upper limit of tuition fees for the Gangnam-gu Seoul Metropolitan Office of Education in 2009, by referring to the upper limit of tuition fees for the previous standards of tuition fees since May 17, 2006, considering that the upper limit of tuition fees for the previous standards of tuition fees are too low and practical tuition fees need to be raised

C. On August 5, 2009, the Plaintiff determined tuition fees in excess of the maximum tuition fee of this case and notified the Defendant thereof (the date of preparation of the notice of tuition fees prepared by the Plaintiff is June 5, 2009), and the content is as indicated below (hereinafter “instant notice of tuition fees”).

(Ⅱ) 30.18 20.41 6 7.1 6 7.1 6 7.1 20 6 7.1 40 5 7.20 16 30,000 (158.73) 39,210 (38.19.89) 32.46 120,000 120,00000 (15.73.15.19) 16 30,000,000 (15.73.19.81) 29,000) 29,430,000,000 (15.81.2) 30,000,000

D. Accordingly, on November 20, 2009, the Defendant deliberated on and decided that the notification of the Plaintiff’s tuition fees of this case by the education committee for private teaching institutes of the Seoul Southern District Office of Education is effective within the scope of the upper limit of the tuition fees of this case. On December 10, 2009, the Defendant issued an order for adjustment of tuition fees (hereinafter “order for adjustment”) to the Plaintiff to collect tuition fees within the scope of the upper limit of the tuition fees of this case pursuant to Article 15(4) of the Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons (hereinafter “Act”), Article 17(1) of the Enforcement Decree of the same Act, and Article 9-5(1) of the Seoul Special Metropolitan City Regulations on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons (hereinafter “Seoul City Rules”).

[Reasons for Recognition] Facts without dispute, Gap's entries in Gap's 1 to 3, 10, 11, 16, 17, 18, Eul's 1 to 11, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

(A) Article 15(4) of the Act provides that the Superintendent of an Office of Education may order the adjustment of tuition fees if he/she recognizes that tuition fees, etc. are excessive. Since the government directly controls the prices of individual service goods that should be voluntarily determined by the rules of demand and supply, the said provision infringes on the property rights provided in Article 23 of the Constitution and the business rights provided in Article 15 of the Constitution, and further violates the market economy principle provided in Article 119(1) of the Constitution.

(B) Article 15(4) of the Act requires that tuition fees, etc. are excessive as the requirements for issuing an order to adjust tuition fees. In full view of the individual circumstances of the instant private teaching institute, including the facility level, teaching hours, rents, and consumer satisfaction, the standards for tuition fees determined in the notice of the instant tuition fees are not deemed excessive under the foregoing Act.

(C) According to Article 9-3(1) of the Seoul Special Metropolitan City Rules, the head of a district office of education shall issue an order to adjust tuition fees within one month from the date when the founder and operator of a private teaching institute notifies the tuition fees, etc., and may extend the order to adjust tuition fees within one month in extenuating circumstances. Thus, the instant order to adjust was issued with the above processing period (preliminary assertion)

(2) The defendant's assertion

(A) Considering the fact-finding of education supplementing school education through a private teaching institute, etc., it is necessary to regulate tuition fees of the private teaching institute, etc. because they have a significant impact on the national economy, and it is also difficult to view that the private interest restricted therefrom is more serious than the public interest pursued thereby. Therefore, it cannot be deemed that it violates Article 15(4) of the Act, which provides for an order to adjust tuition fees of the private teaching institute, and thus violates the principle of excessive prohibition under Article 37(2) of the Constitution, thereby infringing on the property rights of the private teaching institute operator, etc.

(B) As a result of reviewing the evidentiary materials for the determination of tuition fees received from the Plaintiff, it is difficult to view the excess amount within the normal range as exceeding 20% of the tuition fees in light of the following: (a) the fact that there is little evidence to set the tuition fees of this case, such as the grounds for the tuition fees of this case; (b) the amount of the tuition fees of this case in 208 and 2009, compared to the amount of the tuition fees of this case during the first half of the year 2008 and 2009; (c) the amount of the tuition fees notified by the Plaintiff is at least 20% of the general subjects compared to the upper limit of the tuition fees of this case; and (d) the amount of the tuition fees notified by the Plaintiff is at least 125% of the general subjects when including the tuition fees; and (e) it is difficult to view that the excess amount exceeds the upper limit of the tuition fees of this case

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) As to the unconstitutionality of Article 15(4) of the Act

The Act imposes an obligation on a founder and operator of a private teaching institute (hereinafter referred to as “operator and operator of a private teaching institute”) to perform his/her duties as a person responsible for lifelong education, such as operating a private teaching institute autonomously and originally, providing convenience to students, reducing the burden of students by collecting appropriate tuition fees, providing equal opportunities for education, etc. (Article 4(1) of the Act). The founder and operator of a private teaching institute may collect tuition fees and usage fees (hereinafter referred to as “tuition fees, etc.”) from students (Article 15(1) of the Act), and the amount shall also be determined by the founder and operator of the relevant private teaching institute in consideration of the details and duration of teaching, etc. (Article 15(2)): Provided, That where it is deemed that tuition fees, etc. of a private teaching institute for school curriculum determined as above are excessive, the superintendent of education may order adjustment of tuition fees, etc., as prescribed by Presidential Decree (Article 15(4) of the Act)

As such, the system of an order for adjustment of tuition fees for a private teaching institute under Article 15 (4) of the Act provides that the system of adjustment of tuition fees for a private teaching institute shall not be deemed to excessively restrict the basic rights of the founder and operator of the private teaching institute, while the system of adjustment of tuition fees for a private teaching institute under the above system is an unfavorable disadvantage that does not receive excessive tuition fees, on the other hand, the public interest pursuing adjustment of tuition fees shall meet the legal interests by reducing the economic burden of the parents due to the collection of excessive private education expenses, and reducing the waste of human resources and property caused by abnormal educational investments on a national level, thereby recognizing legitimacy of legislative purpose and the suitability of means. In principle, the system of adjustment of tuition fees shall not be deemed to be unconstitutional or unconstitutional since it guarantees that the person who establishes and operates the private teaching institute may determine tuition fees in consideration of the contents of tuition fees, etc., and it shall not be deemed that the tuition fees are excessive compared to the proper tuition fees. On the other hand, the public interest pursuing this system satisfies the balance of the private teaching institute fees system.

(2) Whether the requirements for issuing a coordination order under Article 15(4) of the Act are satisfied

Article 15 (4) of the Act provides that "The Superintendent of an Office of Education may order the adjustment of tuition fees, etc., as prescribed by Presidential Decree, if he/she deems that tuition fees, etc. of a private teaching institute for school curriculum or a teaching school are excessive, as determined by paragraph (2)." In full view of the relevant provisions such as Articles 4 (1), 15 (1), (2), (3), and (4) of the Act and the legislative purport thereof, "excess of tuition fees, etc." under Article 15 (4) of the Act means that the tuition fees, etc. of a private teaching institute are excessive to the extent that they cannot be socially acceptable, compared to appropriate tuition fees. Therefore, whether tuition fees of a private teaching institute are excessive shall be interpreted as excessive to the extent that the tuition fees of a private teaching institute are excessive. As such, not only general elements such as the type and facility level of a private teaching institute, the size and size of the school, the number of teaching hours of tuition fees, tuition fees, etc., and other factors affecting the relevant office of education.

However, in each statement in Eul evidence Nos. 1 and Eul evidence Nos. 7, which is recognized as adding the whole purport of the pleadings, the upper limit of tuition fees of this case, namely, data on the rate of increase, such as the recent annual prices, and the upper limit of tuition fees of each office of education in Seoul area based only on the comparative data on the school fees of each office of education in Seoul area, and the upper limit of tuition fees of this case is determined by dividing the above standards into the types of private teaching institutes, the teaching courses, and half (in the case of an admission and continuation school, it shall be divided into one, two, three, four, and five, and the upper limit of tuition fees of this case shall be determined based on the previous statistical standards or data on the upper limit of tuition fees of this case, which are not submitted to the court in order to control the high limit of tuition fees as seen above (On the other hand, the upper limit of tuition fees of this case shall not be determined on the basis of statistical standards or data on the upper limit of tuition fees of this case, which are calculated on the basis of the above.

Therefore, it is acknowledged that the tuition fees determined by the instant private teaching institute exceed at least 20% and the maximum of 50% (in the case of debate, at least 125% and maximum of 200%) compared to the maximum tuition fees in this case. However, such circumstance alone is insufficient to readily and readily conclude that the tuition fees determined by the instant private teaching institute are excessive to the extent that it is socially acceptable compared to the appropriate tuition fees, and the same applies even in addition to the other circumstances asserted by the Defendant. Therefore, it is reasonable to deem that the instant adjustment order does not meet the requirements under Article 15(4) of the Act.

In regard to this, the defendant argues that the upper limit of tuition fees of this case is a kind of guideline set by the Seoul Metropolitan Office of Education Governing the regional curriculum or economic conditions, and it is possible to adjust the amount of tuition fees to reasonable tuition fees if it submits reasonable and objective evidence that exceeds the standard amount of tuition fees. Therefore, although the adjustment order of this case is lawful based on the above standard, the defendant must prove whether the adjustment order of this case satisfies the requirements of Article 15 (4) of the Act, and it is inappropriate to consider the upper limit of tuition fees of this case as the standard for determining whether the individual tuition fees of this case are excessive, and the defendant does not prove that the level of tuition fees of this case are appropriate, and because the defendant does not prove that the tuition fees of this case are excessive to a certain extent, the adjustment order of this case is unlawful. Accordingly, the defendant's argument is without merit.

3. Conclusion

If so, without examining the plaintiff's conjunctive argument, the pertinent adjustment order should be revoked. Thus, the plaintiff's claim of this case shall be accepted for reasons.

[Attachment 1] Related Acts and subordinate statutes: omitted

[Attachment 2] Standards for the upper limit of tuition fees for a private teaching institute of the Seoul Metropolitan Office of Education: omitted

Judges lower-ranking (Presiding Judge)