[1] The duty of care to be borne when a university grants admission to a disabled person

[2] Whether a disabled student may demand the university to which he/she directly belongs to install convenience facilities under the Act on the Promotion and Guarantee of Convenience Promotion of Persons with Disabilities, the Aged, Pregnant Women, Etc. (affirmative)

[3] The case holding that a university is liable to pay consolation money (a recognized amount: 3,000,000 won) where it neglected to provide convenience facilities under the Act on the Promotion and Guarantee of Convenience of Persons with Disabilities, the Aged, Pregnant Women, Etc. to students with disabilities

[1] Where an educational institution has decided to grant admission to a disabled person through a document and interview for the disabled person, there is a contractual relationship between the disabled student and the university and the disabled person are obliged to pay tuition fees, etc., and the university are obligated to provide high-quality educational opportunities to the disabled student. Thus, the university bears the duty to consider the disabled student so that he/she can minimize inconvenience that the disabled student may suffer as a disabled person while living in the school and receive sufficient and substantial education equally with the ordinary student.

[2] In order to provide high-quality educational opportunities to students with disabilities who are admitted, universities are obligated to provide convenience facilities under the Act on the Promotion and Guarantee of Convenience of Persons with Disabilities, the Aged, Pregnant Women, Etc., and students with disabilities can actively demand the university to install such facilities.

[3] The case holding that a university is liable to pay consolation money (a recognized amount: 3,000,000 won) where it neglected to provide convenience facilities under the Act on the Promotion and Guarantee of Convenience of Persons with Disabilities, the Aged, Pregnant Women, Etc. to students with disabilities, such as not providing convenience facilities (the Act on the Promotion and Guarantee of

[1] Articles 3, 4, and 7 of the Act on the Guarantee of Convenience Promotion of Persons with Disabilities, the Aged, Pregnant Women, Etc., Article 3 [Attachment Table 1] of the Enforcement Decree of the Act on the Guarantee of Convenience Promotion of Persons with Disabilities, the Aged, the Aged, Pregnant Women, etc. / [2] Articles 3, 4, and 7 of the Act on the Guarantee of Convenience Promotion of Persons with Disabilities, the Aged, Pregnant Women, etc., and Article 3 [Attachment Table 1] of the Enforcement Decree of the Act on the Guarantee of Convenience Promotion of Persons with Disabilities, the Aged, the Aged, and Pregnant Women, etc. / [3] Articles 3, 4, and 7 of the Act on the Guarantee of Convenience Promotion of Persons with Disabilities, the Aged, and Pregnant Women, Article 3 [Attachment Table 1] and 4 [Attachment Table 2]

Plaintiff (Law Firm Future, Attorneys Lee Jae-chul et al., Counsel for the plaintiff-appellant)

Korea Educational Institute (Attorney Han-chul, Counsel for the defendant-appellant)

February 27, 2008

1. The defendant shall pay to the plaintiff 3 million won with 5% interest per annum from June 1, 2007 to April 23, 2008 and 20% interest per annum from April 24, 2008 to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 80% is borne by the Plaintiff, and 20% is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 20,000,100 won with 5% interest per annum from June 1, 2007 to the pronouncement date of this case and 20% interest per annum from the next day to the full payment date.

1. Basic facts [based on recognition]: Fact without dispute, result of on-site inspection by this court, the whole purport of pleadings;

A. The Plaintiff, who was the physically handicapped with the second half of the year due to the fall accident in 1975, was the physically handicapped in the second half of the year. At the end of 2004, the Plaintiff supported the social welfare department at the Gannam University Administrative Graduate School operated by the Defendant, followed the document examination and interview, completed the above social welfare and master program from March 2005.

B. In the course of completing the master’s degree course, the Plaintiff mainly used lifelong education centers with administrative graduate schools from among the buildings in schools, literature centers with social welfare department professors, central libraries, restaurants, student community centers, etc.

2. The parties' assertion

A. The plaintiff's assertion

The defendant, as a person operating Gyeongnam University, has a contractual relationship under which the defendant is obliged to provide the plaintiff with high-quality educational opportunities. Accordingly, the defendant is obligated to pay maximum consideration to the plaintiff so that the disabled plaintiff can receive normal university education on an equal basis with other students by minimizing inconvenience that can be experienced by the disabled while living at school. However, the defendant asserts that the defendant is obligated to pay monetary attention to physical and mental pain caused by the defendant's violation of the duty to pay consideration on each building used mainly by the plaintiff, such as non-establishment of elevators and toilets for the disabled, inconvenience in access roads, non-performance of follow-up measures following the failure to install elevators, etc., and thus, caused the plaintiff to suffer severe physical inconvenience and mental pain and lead school life.

B. The defendant's argument

(1) If the Plaintiff’s claim is based on the Act on Guarantee of Promotion of Convenience of Persons with Disabilities, the Aged, Pregnant Women, Etc. (hereinafter “Act”), the said Act does not guarantee a private person’s direct claim.

(2) The disabled convenience facilities, etc. shall be established in consideration of the size and degree of the budget. As long as the Plaintiff voluntarily selected and entered the Defendant University with knowledge that convenience facilities are insufficient, it cannot be deemed that the Defendant is legally obligated to take account of the budget, etc.

(3) The Defendant had installed convenience facilities for the disabled in the main building from around 1998, before the Plaintiff entered, for the convenience of the disabled, and has made efforts to install convenience facilities as alleged by the Plaintiff as well as to install convenience facilities within the extent that the budget permits.

3. Determination

A. As seen earlier, the defendant decided to grant admission to the disabled plaintiff through documents and interview. As such, the plaintiff and the defendant bear the duty to pay tuition fees, etc. to the defendant, and the contract relationship was formed between the defendant and the defendant to provide the plaintiff with high-quality educational opportunities. Based on this, the defendant bears the duty to minimize inconvenience that the plaintiff may suffer as a disabled person while living in the school and to give consideration to the plaintiff so that he can receive sufficient and substantial university education equal to that of ordinary students (see Seoul Central District Court Decision 2001Da76197, Jun. 21, 2002). The defendant bears the duty to consider for the provision of educational opportunities based on the above contract relationship.

First of all, Article 34 of the Constitution provides that all citizens shall have the right to a life worthy of human dignity, and people without a livelihood due to physical disability, disease, old age, and other reasons shall be protected by the State under the conditions as prescribed by the Act. Furthermore, the Act on the Convenience of Persons with Disabilities was enacted to contribute to their participation in social activities and promotion of welfare by ensuring that persons with disabilities, older persons, pregnant women, etc. can use facilities and equipment and access information safely and conveniently in living.

However, the above law aims to guarantee the dignity, value, and the right to pursue happiness of human beings by providing convenience related to the use of convenience facilities to the disabled persons, who are the socially weak, but it also provides exceptions and grounds for reservation in certain cases in consideration of the budgetary problems of facility owner through the Addenda to the above law and the Enforcement Decree. Thus, even if the disabled plaintiff requests to provide all facilities so that it does not cause inconvenience in school life, the defendant's duty to care under the above law is sufficient only to make every effort for the improvement of facilities within budgetary limits.

However, as seen earlier, one party between the disabled and the defendant is not a one-time relationship with which they provide or receive convenience facilities for their main purpose, but the two parties are obligated to perform their obligations. As such, once the plaintiff fulfilled their obligations, the defendant seems to have legally obligated to provide equal education opportunities to the plaintiff who is the disabled by providing convenience facilities in accordance with the Disabled Persons Convenience Act which provides the minimum scope of the use of the facilities for the disabled. Furthermore, if the Disabled Persons Convenience Act requires a lot of budget to supplement facilities, the plaintiff is required to install convenience facilities within a range of not less than two years and not more than seven years from the enforcement date of April 10, 197. The Act on the Convenience for the Disabled Persons provides that the owner of the facilities who provides convenience should be obliged to fulfill their obligations within a certain period of time, and it appears that the Act on the Convenience for the Disabled Persons provides minimum standards for facilities to ensure the right to move and access to the facilities for the benefit of the disabled, and it appears that there is no need for the public to effectively prevent any discrimination in the daily life of the disabled and the right to use of the disabled.

As long as the defendant's obligation to pay to the plaintiff is recognized as a legal obligation, the defendant's assertion that the plaintiff himself/herself selected the defendant university and entered the defendant university with the knowledge that convenience facilities are insufficient, or that the budgetary problem should be considered, can be considered as a ground for determining the amount of damages, so that the defendant's liability cannot be exempted.

B. Scope of specific duty of care

(1) All legal provisions (Act on the Convenience of Persons with Disabilities)

Article 3: (Basic Principle of Installation of Convenience Facilities) The owner of convenience facilities shall install convenience facilities so that persons with disabilities, etc. may move to the shortest distance possible in using "public buildings and public facilities (referring to buildings, facilities and ancillary facilities used by many and unspecified persons, which are prescribed by Presidential Decree)".

Article 4: Persons with disabilities, etc. shall have the right to equally use facilities and equipment used by persons without disabilities, etc. and to freely access information in order to be guaranteed the right to pursue dignity, value, and happiness as human beings.

Article 7 and Articles 2 and 3 [Attachment 1] 2-(g)-(1) of the Enforcement Decree: Universities among education and research facilities that shall be installed convenience facilities shall be included.

Article 4 [Attachment 2] 3-(A) of the Enforcement Decree

* Access roads may be installed by linking to the main entrance of (A) where it is difficult to construct them in structural way or where secondary entrances are more convenient and safe than the main entrances for disabled persons, etc., connected to the secondary entrances instead of the main entrances.

* If there is a difference in height between the main entrance and the passage of a building, a downhill or a wheelchairs or slopeway must be installed. If it is structural to eliminate the difference in height of the main entrance or exit, or if secondary entrance or exit is more convenient and safe than the main entrance or exit, the difference in height of the secondary entrance or exit may be removed instead of the main entrance or exit.

* It is necessary to install stairs in a structure convenient for the disabled persons to move conveniently from one floor to another floor of a building, or install one or more elevators, escalators, wheelchairs, or slope ways for the disabled persons, except in cases where the facilities used by the disabled persons, etc. are located only on the first floor. Toilets must be installed in consideration of the structure, floor quality, finishing materials, and attachment so that the disabled persons, etc. can use conveniently, and at least one male and female substitute for the disabled persons must be installed.

(2) Examining the instant case, according to the purport of the oral argument, the statement No. 1 through No. 3-2, and the result of the on-site inspection by this court, the Defendant, upon entering into a contract with the Plaintiff, installed disabled toilets within an administrative graduate school on July 2005, when the Plaintiff was obligated to promptly install them within the building mainly used by the Plaintiff. ② The Defendant, despite the fact that the Plaintiff’s need to use the 3rd floor lecture, 4th floor computer practice room, 5th floor room, etc. within the administrative graduate school, did not take any measures other than moving the 5th floor to the 1st floor, and it was difficult for the Plaintiff to preferentially install an elevator with water purifiers and the 1st floor so that the Plaintiff could not have access to the elevator even if he did not have access to the elevator, and even if he did not have access to the elevator, it was difficult for the Plaintiff to have more convenient use of the elevator room than the 2nd floor, and it was also difficult for the Plaintiff to use it as the 7th floor entrance or the 2nd floor.

[On the other hand, according to the result of the on-site inspection of this court, a separate access road has been installed to enter a restaurant from the library, and there was no separate access road for the plaintiff's access to the part where structural stairs are installed, so this part of the plaintiff's assertion is without merit.

C. According to the above facts, since it is obvious in light of the empirical rule that the plaintiff suffered physical inconvenience and mental suffering due to the defendant's failure to perform the duty of care, the defendant is obligated to pay monetary compensation for mental damage suffered by the plaintiff. Thus, in calculating the amount, the plaintiff was admitted to the school operated by the defendant with knowledge that the plaintiff's convenience facilities for the disabled are insufficient, and the defendant also made efforts to a certain extent within the scope permitted by the budget, and the amount of consolation money to be paid by the defendant shall be set at KRW 3,00,000, in consideration of all the circumstances shown in the argument of this case.

4. Conclusion

Thus, the defendant is obligated to pay 5% per annum from June 1, 2007, the delivery date of the copy of the complaint of this case, to the date of the decision of this case, and 20% per annum from the next day to the day of complete payment, as the plaintiff's claim of this case is reasonable within the scope of the above recognition, and the remaining claims shall be dismissed as they are without merit.

Judges Shin Jae-chul