[1] The legal nature of admission into a private university and the binding force of its school regulations

[2] In a case where a private university established by a religious organization provides school regulations that stipulate the requirements for graduation to attend a university worship for a certain semester, whether the student’s freedom of religion may be infringed (negative)

[1] The legal relationship between private schools and students is a private law contract when a student's admission to a private university is permitted. The essence of a private university is to provide education to educational facilities including its human and physical means, and the autonomy is granted to guarantee the freedom of learning recognized by the Constitution. Thus, universities may autonomously determine university facilities and student management as their competence. In addition, even in cases where there is no specific legal basis to clarify the relation of admission, a university may unilaterally establish school regulations, regulations, etc., which determine the matters concerning school administration, admission, graduation, or school facilities, unless otherwise provided by law. Even if a person who wants to acquire the status of a student of a private university did not know it in advance because the school regulations, regulations, etc. do not stipulate the guidance for admission or examination, it is bound by the contents of the school regulations, regulations, etc. unilaterally determined by the school authorities.

[2] In full view of the provisions of Articles 115(1) and 5 of the Education Act and Articles 55 and 56(1) of the Enforcement Decree of the same Act, a private university established by a religious organization is prohibited from conducting religious education in a school established and managed by the State or a local government for a specific religion. As such, the private university established by a religious organization may conduct religious education or religious publicity as a content of the freedom of religion. To the extent that it does not infringe on the freedom of religion, it may establish school regulations that stipulate the requirements for the student to attend university worship during a certain semester to the extent that it does not infringe on the freedom of religion. Thus, this cannot be deemed as a fundamental infringement of the student’s freedom not

[1] Articles 20, 22, / [2] Articles 5 and 115 (1) of the Education Act, Articles 55 and 56 (1) of the Enforcement Decree of the Education Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

[Judgment of the court below]

School Foundation (Attorney Kim Sung-sung et al., Counsel for the defendant-appellant)

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant shall grant a bachelor's degree to the plaintiff.

In full view of the facts that the Plaintiff entered the department of law established and operated by the Defendant on March 3, 1991, there is no dispute between the parties, and the Plaintiff acquired 152 credits including the major and cultural subject up to 194 semester, in full view of the whole purport of the pleadings in the evidence Nos. 1 through 7, and Nos. 1, 1991, and No. 152 credits including the major and cultural subject up to 194. The above university set the minimum credits necessary for graduation under the school regulations as 150 credits in the case of the department of law, and that the student who did not attend the department of law shall not be allowed to graduate for 6 or more years at university. The Plaintiff agreed to observe the school regulations and all the regulations at the time of entering the above university, but failed to graduate for 4 or more years, and there is no counter-proof evidence.

As the cause of the instant claim, the Plaintiff is entitled not to be forced to attend a religious assembly against his will, and therefore, the school regulations that stipulate that the above university is required to attend a religious assembly for a six-year term constitute unconstitutional school regulations which violate the freedom of religion, and thus cannot be considered as a requirement for graduation. The relationship between the Plaintiff and the above university is basically a contractual relationship under the private law, but the Plaintiff bears the prescribed expenses, and acquired the credits stipulated by the school regulations, and the Defendant is obligated to grant academic degrees to the Plaintiff.

Therefore, the legal relations arising between private schools and universities are private legal relations. Since the essence of private universities is to provide education to the students, including their human resources and physical means, and autonomy is granted to guarantee the freedom of learning recognized by the Constitution, universities or colleges may autonomously determine their competence and may unilaterally establish school regulations, except as otherwise expressly provided for in Acts, such matters as school regulations, entrance and graduation, or school facilities’ use of school facilities can be unilaterally established for the purpose of clarifying their usage. Those who wish to obtain the status of students of private universities or colleges can not enter school or enter private universities or colleges as a whole because they did not know of such facts in advance. Article 115 of the Enforcement Decree of the Education Act prohibits establishment of school regulations, including school regulations or regulations, and provides for an admission to and from private universities or colleges as one of the following matters. Article 5 of the Enforcement Decree of the Education Act prohibits establishment of school regulations, and provides for an admission to and from private universities or colleges or universities or colleges as a whole.

In addition, according to the evidence No. 2-1 to No. 4-3 of the evidence No. 4-2, the course of the university at the above university is not only a type of worship but also a type of lectures or drama. The school regulations of the above university provide that students shall participate in the course of the university for a certain semester. This is not a state-owned or a public university, but also a student’s obligation to participate in the course of the course of the university for a six-year term as a requirement for graduation in order to help students understand their religion in the course of religious education and religious publicity based on his/her freedom of religion. It is not a fundamental violation of the student’s freedom not to have a religion.

Therefore, the plaintiff only acquired credits necessary for graduation, and did not meet the requirements for graduation as stipulated in the above school regulations because he did not participate in college arts course for at least six semesters during his school attendance. Thus, the plaintiff's claim of this case seeking bachelor's degree from the defendant is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Hwang-sik (Presiding Judge) and Kim Jong-soo