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대법원 2014. 2. 27. 선고 2012추190 판결
[취소처분취소][미간행]
Main Issues

[1] The method of determining whether the affairs required by the head of a local government under the law are autonomous affairs or delegated affairs of an agency

[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)

[Reference Provisions]

[1] Articles 9 and 102 of the Local Autonomy Act / [2] Articles 9(4) and 17 of the Framework Act on Education; Articles 6, 25, and 47(2) of the former Elementary and Secondary Education Act (Amended by Act No. 11690, Mar. 23, 2013); Articles 82 of the Enforcement Decree of the Elementary and Secondary Education Act (Amended by Presidential Decree No. 24423, Mar. 23, 2013); Article 34(2) of the former Higher Education Act (Amended by Act No. 11690, Mar. 23, 2013); Articles 35 and 102 of the former Enforcement Decree of the Higher Education Act (Amended by Presidential Decree No. 2423, Mar. 23, 2013); Articles 9 and 102 of the Local Autonomy Act

Reference Cases

[1] Supreme Court Decision 2002Du10483 decided Apr. 22, 2003 (Gong2003Sang, 1209) Supreme Court Decision 201Du56 decided May 23, 2013 (Gong2013Ha, 1122)

Plaintiff

The Superintendent of the Provincial Office of Education of Jeollabuk-do (Attorney Jeon Jong-ho, Counsel for defendant)

Defendant

(2) The Minister of Education (Attorney Kim Jong-hwan et al., Counsel for the plaintiff-appellant)

Conclusion of Pleadings

December 12, 2013

Text

The instant lawsuit is dismissed. The costs of lawsuit are assessed against the Plaintiff.

Purport of claim

The defendant's revocation ex officio against the plaintiff on August 24, 2012 on the entry of the school violence aggressor in school violence on August 24, 2012.

Reasons

1. The circumstances and the summary of the ex officio revocation disposition of this case

The following facts are not disputed between the parties, or acknowledged by Gap evidence 1 to 4, Eul evidence 1 to 1-1, 2, 4-3 and 4, respectively, and the whole purport of arguments.

(a) Amendment of the defendant's guidelines for preparing and managing school records;

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 schools; and (c) amended the Guidelines for the Management of School Records by Ordinance of the Ministry of Education

(A) the method to enter school life records;

The term "special engineer claim" means a transfer to another school, expulsion from school, taking special education or psychological treatment, suspension of attendance for not more than ten days in writing, prohibition of contact, intimidation, and retaliation, and service at school and class replacement, 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 Life Records by the Ministry of Education, Science and Technology Directive No. 257 on June 29, 2012, and changed the preservation period of school life records from 10 years after graduation to 5 years after graduation.

B. Guidance on how to write down the instant case

On July 9, 2012, the National Human Rights Commission of Korea held the 14th Committee on the Establishment of Human Rights-Friendly School Culture on July 2012, 2012 and decided to recommend a comprehensive policy for the creation of human rights-friendly school culture. The content includes the part that “The school violence record should be amended so that it does not constitute another human rights violation by introducing the deletion review system or the interim deletion system prior to graduation.”

Accordingly, on August 20, 2012, the Plaintiff sent an official letter to elementary, middle, and high schools and special schools, stating that “I will inform the following matters and methods concerning the entry of school life records in the results of the measures taken by the Autonomous Committee on Countermeasures against School Violence.” The details of the Plaintiff’s guidance are as follows (hereinafter “the guidelines for entry in this case”).

(a) Object to be recorded: A student who has received a final judgment of a criminal offense in a court;

(2) Method of recording: output of school life records, and the relevant content;

(c) Management: To manage at the expense of the head of human rights department, assistant principal, or principal, and to discard if the student has graduated from the school;

(4) Information disclosure: In principle, information disclosure cannot be provided to the outside without the consent of parents and students.

C. The instant corrective order and ex officio revocation disposition

On August 21, 2012, the Defendant immediately revoked (1) the subject and methods related to the entry of the student register sent to the Plaintiff at the Office of Education (hereinafter “the instant corrective order”) and issued a corrective order to submit it to the Ministry of Education, Science and Technology by August 23, 2012, to the school and the Office of Education by August 22, 2012, to enter the measures against the aggressor student in school in the student registry pursuant to statutes (hereinafter “instant corrective order”).

As the Plaintiff did not comply with the instant corrective order, on August 24, 2012, the Defendant revoked ex officio the Plaintiff’s guidance on the point of entry in the instant case on the grounds that the guidance on the point of entry in the instant case violated Article 25 of the Elementary and Secondary Education Act, Article 25 of the Rules on the Preparation and Management of School Life Records, and the Guidelines for the Preparation and Management of School Life Records (hereinafter “instant ex officio revocation disposition”).

2. Whether the lawsuit of this case is lawful

A. The subject of a lawsuit under Article 169(2) of the Local Autonomy Act, which is applicable mutatis mutandis by Article 3 of the former Local Education Autonomy Act (amended by Act No. 11690, Mar. 23, 2013) is limited to the cancellation or suspension of orders or dispositions concerning autonomous affairs, and thus, the subject of the lawsuit is limited to the cancellation or suspension of orders or dispositions concerning autonomous affairs. Therefore, the subject of the lawsuit is whether the guidance and supervision of the superintendent of education on the preparation

1) To determine whether a matter is autonomous affairs or an agency’s delegated affairs, the form and purport of the statutory provisions should be first considered in order to determine whether a matter is an agency’s affairs (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 institutions,” and does not provide clear criteria for distinguishing national affairs and affairs of local governments from those of the guidance and supervision of schools. In addition, Article 6 of the former Elementary and Secondary Education Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same shall apply) enacted pursuant to Article 9(4) of the Framework Act on Education provides that “National schools shall be subject to the direction and supervision of the Minister of Education, Science and Technology, and public and private schools shall be subject to the guidance and supervision of the superintendent of education,” thereby granting the authority to guide and supervise public and private schools to the superintendent of education.

3) According to Article 25 of the former Elementary and Secondary Education Act, the head of a school shall comprehensively observe and evaluate the academic achievement degree and personality (personality) of a student, and shall prepare and manage data, such as personal information, school records, attendance status, status of obtaining qualification and certification, status of academic development, behavior characteristics and comprehensive opinion, and other matters prescribed by Ordinance of the Ministry of Education, Science and Technology within the scope necessary for educational purpose, according to the standards prescribed by Ordinance of the Ministry of Education, Science and Technology (Paragraph 1), 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 former Elementary and Secondary Education Act, Article 82 of the former Enforcement Decree of the Elementary and Secondary Education Act (amended by Presidential Decree No. 24423, Mar. 23, 2013), the records of the school life of the middle school are reflected in the entrance screening of high school electricity and the second group of schools, and Article 34(2) of the former Higher Education Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same) and Article 35 of the former Enforcement Decree of the Higher Education Act (amended by Presidential Decree No. 24423, Mar. 23, 2013), the head of a university may utilize the records of the school life of the high school as admission screening data to select new students.

According to the provisions of the former Elementary and Secondary Education Act, the former Higher Education Act, and the Enforcement Decree thereof, where a student transfers his/her school life records between Cities/Dos or between national schools and public and private schools, the 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 are reflected in high school entrance screening, and high school students’ school life records are utilized as entrance 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 are deemed to be uniformly handled for the benefit of the whole citizens.

4) Therefore, the supervisory office’s guidance and supervision of affairs concerning the preparation of school life records that need to be uniformly processed on a national scale shall be deemed to be affairs of a nature that need to be handled for the benefit of all citizens. Therefore, it is reasonable to interpret that the guidance and supervision affairs of the superintendent of education concerning the preparation of school life records conducted by the head of a public and private school is the State affairs, which are delegated to the superintendent of education of a City/Do. Furthermore, Article 6 of the former Elementary and Secondary Education Act, which provides for guidance and supervision authority for public and private schools of the superintendent of education, recognizes that the affairs of guidance and supervision of matters that need not be uniformly processed on a national scale fall under the authority of the superintendent of education as autonomous affairs, while it is deemed that the State affairs are delegated to the superintendent of education as the guidance and supervision of matters that need to be handled on a national scale. In addition, it is difficult to regard that the “guidance of elementary schools, middle schools, and high schools” as one of the affairs of the local government, “education, sports, culture, and arts promotion.”

B. Thus, the instant ex officio revocation disposition is deemed to be conducted with respect to the delegated affairs of the agency, and thus 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, the instant lawsuit is unlawful.

3. Conclusion

Therefore, the instant lawsuit is 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 Yong-deok (Presiding Justice)

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관련문헌

- 조성규 지방자치단체에 대한 감독청의 직권취소의 범위와 한계 행정판례연구 22-2집 / 박영사 2017

참조판례

- [1] 대법원 2003. 4. 22. 선고 2002두10483 판결

- 대법원 2013. 5. 23. 선고 2011추56 판결

참조조문

- [1] 지방자치법 제9조

- 지방자치법 제102조

- [2] 교육기본법 제9조 제4항

- 교육기본법 제17조

- 초·중등교육법(구) 제6조

- 초·중등교육법(구) 제25조

- 초·중등교육법(구) 제47조 제2항

- 초·중등교육법 시행령 제82조

- 고등교육법(구) 제34조 제2항

- 고등교육법 시행령(구) 제35조

- 지방자치법 제9조

- 지방자치법 제102조

본문참조판례

대법원 2003. 4. 22. 선고 2002두10483 판결

대법원 2013. 5. 23. 선고 2011추56 판결

본문참조조문

- 학교폭력예방 및 대책에 관한 법률 제17조 제1항

- 초·중등교육법 제25조

- 지방교육자치에 관한 법률(구) 제3조

- 지방자치법 제169조 제2항

- 교육기본법 제17조

- 교육기본법 제9조 제4항

- 초·중등교육법(구) 제6조

- 초·중등교육법(구) 제25조

- 초·중등교육법(구) 제25조 제1항

- 초·중등교육법(구) 제25조 제2항

- 초·중등교육법(구) 제25조 제3항

- 초·중등교육법(구) 제47조 제2항

- 초·중등교육법 시행령(구) 제82조

- 고등교육법(구) 제34조 제2항

- 고등교육법 시행령(구) 제35조

- 지방자치법 제9조 제2항 제5호