[1] In a case where the head of an educational institution, educational administrative agency, local government, or educational research institute is notified of a disciplinary resolution, whether he/she is obligated to execute the resolution within the statutory deadline (affirmative in principle)

[2] The effect of a request for a disciplinary decision made by the Minister of Education to a school inspector, etc. who works for the head of a district office of education or a City/Do office of education at least a director general of a regional office of education without the request of the superintendent of education (negative) / Whether the "administrative necessary measures" which the Minister of Education may take pursuant to Article 3 of the Local Education Autonomy Act and Article 170 (2) of the Local Autonomy Act includes a request for a

[1] Article 17(1) of the Decree on the Disciplinary Action against Public Educational Officials provides that a disciplinary authority shall execute a disciplinary decision within 15 days from the date of receipt of a written disciplinary decision by the Disciplinary Committee. The legislative purpose of Article 17(1) of the Decree on the Disciplinary Action against Public Educational Officials is to protect the rights and interests of public educational officials and to promote fair and reasonable operation of procedures so as to ensure fairness in disciplinary action as well as to protect the rights and interests of public educational officials by check the arbitrary operation of disciplinary actions by the appointing authority. The disciplinary authority notified of a written disciplinary decision is entitled to file a request for a review or reexamination only when it is deemed that a disciplinary decision is less severe under Article 82(2) of the State Public Officials Act. In full view of the relevant provisions on the disciplinary action against public educational officials, the head of an educational institution, educational administrative agency, local government, or educational research institution is obligated to execute a disciplinary decision within the statutory deadline unless there are special

[2] In full view of the contents and legislative intent of Article 51(1) of the former Public Educational Officials Act (amended by Act No. 11527, Dec. 11, 2012), the Minister of Education may request a disciplinary decision against a school inspector, etc. who is above the director general of the district office of education and the City/Do office of education, only at the request of the superintendent of education, and no such request for a disciplinary decision made by the Minister of Education shall be effective without the request of the superintendent of education. Furthermore, according to Article 3 of the Local Education Autonomy Act and Article 170(2) of the Local Autonomy Act, the Minister of Education may execute a vicarious execution or take necessary administrative and financial measures at the expense of a local government unless the superintendent of education fails to comply with an order to perform his/her duties. However, the request for a disciplinary decision made by the superintendent of education constitutes a doctor’s statement and cannot be deemed as having made a doctor’s statement without the legal basis, considering that the request for a disciplinary decision made by the superintendent of education could be made immediately.

[1] Article 51(1) of the former Public Educational Officials Act (Amended by Act No. 11527, Dec. 11, 2012); Articles 16 and 17(1) of the Decree on Punishment of Public Educational Officials; Article 82(2) of the State Public Officials Act / [2] Article 51(1) of the former Public Educational Officials Act (Amended by Act No. 11527, Dec. 11, 2012); Articles 2(3)3, 5, 3(5), and 6(1) of the Decree on Punishment of Public Educational Officials; Articles 3, 18(1), 20 subparag. 16, and 27 of the Local Education Autonomy Act; Article 170(2) of the Local Autonomy Act

[1] Supreme Court Decision 2013Do229 Decided April 10, 2014 (Gong2014Sang, 1075)

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

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

June 11, 2015

The Defendant’s order for performance of duties against the Plaintiff on April 18, 2013 is revoked. The costs of lawsuit are assessed against the Defendant.

The same shall apply to the order.

1. Details and the summary of the order to perform the duties;

The following facts may be acknowledged, either in dispute between the parties, or in full view of the entries in Gap evidence 1 to 11, Eul evidence 1 to 10, and the whole purport of pleadings.

(a) Amendment of the defendant's school records and management guidelines;

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 School; 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 use it as data for school guidance and higher level of education; and (c) revised the Guidelines for the Management of

A) Method of entering school life records

In the special engineer column of “school matters”, the transfer to another school, expulsion from school, and the special engineer column of “routing situation” shall include community service, special education completion or psychological treatment, suspension of attendance for not more than ten days, suspension of attendance at the “act characteristics and comprehensive opinions”, the prohibition of contact, intimidation, and retaliation, and the service at school and the replacement of class at school, 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 Preparation and Management of School Records” by Ministry of Education, Science and Technology Directive No. 257, and revised the preservation period of school records from 10 years to 5 years after graduation, as in the case of high schools, as in the case of elementary schools and middle schools.

(b) Guidance on the Plaintiff’s school life records;

On July 9, 2012, the National Human Rights Commission held a total policy recommendation to create a culture for human rights-friendly school, and the content includes the part that “the school violence record should be amended to prevent the school violence record from being subject to any other human rights violations, such as the introduction of the deletion review system or the interim deletion system before graduation.”

Accordingly, on August 20, 2012, the Plaintiff sent to elementary, middle, high, and special schools within the jurisdiction of elementary, middle, and special schools an official letter stating that “I will give the following guidance on the subject and method of entry in school life records as a result 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 guidance on the subject and method of entry

1) Object to be recorded: A student who has received a final and conclusive judgment in a criminal case;

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

(iii) Management: The head of human rights department, assistant principal or principal of a school shall be managed at the expense of outside, and discard if the student has graduated from the school;

4) Disclosure: In principle, it cannot be provided to the outside without the consent of parents and students themselves.

(c) corrective orders and ex officio revocation orders;

On August 21, 2012, the Defendant issued a corrective order to the Plaintiff on August 21, 2012, (1) immediately cancel the subject and method of the entry of school records announced to schools at the Office of Education, and (2) to enter the measures against school violence students in school records pursuant to statutes in school and the Office of Education by August 22, 2012, to submit them to the Ministry of Education, Science and Technology by August 23, 2012.

As the Plaintiff did not comply with the above corrective order, on August 24, 2012, the Defendant revoked ex officio the Plaintiff’s guidance on the written guidelines of this case on the grounds that the guidance on the written guidelines of this 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 Records.

(d) Conducting a specific audit, requesting disposition, etc.;

1) From August 23, 2012 to September 13, 2012, the Defendant conducted a specific audit with respect to the office of education in Jeollabuk-do. The Defendant pointed out that (i) the management of affairs related to the entry of school violence aggressor students’ school records, (ii) the management of public documents in relation to the entry of school violence aggressor students’ school records, (iii) the refusal to enter school violence aggressor students’ school records, and (iv) the refusal to submit audit data, and (v) the Plaintiff demanded that the pertinent public official make a request for a request for a disciplinary decision or a request for a disciplinary decision, etc. according to the result of the specific audit.

2) On November 22, 2012, the Plaintiff did not comply with the above disposition. On November 22, 2012, the Defendant issued an order to perform duties (hereinafter “order to perform duties in advance”) to the Ministry of Education to request a disciplinary decision against a person in a disciplinary case under the jurisdiction of the Ministry of Education pursuant to Article 170 of the Local Autonomy Act on November 27, 2012. As to this order, the Plaintiff filed a lawsuit seeking the revocation of the preceding order pursuant to Article 170(3) of the Local Autonomy Act on December 5, 2012.

E. Details of the instant order to perform duties

1) On December 5, 2012, the Defendant requested the Special Disciplinary Committee of the Ministry of Education without filing an application for the Plaintiff’s request for a disciplinary resolution. The Special Disciplinary Committee of the Ministry of Education notified the Plaintiff on March 5, 2013 of the details of the disciplinary resolution and the disciplinary execution of the disciplinary action in accordance with Article 17 of the Decree on the Disciplinary Measures against the Director of the Education Bureau for the following reasons: (a) February of the salary reduction; (b) February of the school inspector; (c) January of the school inspector; (d) ten persons of the district office of education, including the school inspector Nonparty 5; (e) the school inspector Nonparty 6; and (e) Nonparty 7, etc. of the Superintendent of the Education Office of Jeollabuk-do Office of Education; and (e) three persons of the District Office of Education, including Nonparty 8, etc. of the Office of Education

2) On April 18, 2013, the Defendant ordered the Plaintiff to perform the instant duties, stating that “A request the Plaintiff to enforce a disciplinary action pursuant to Article 17 of the Decree on the Punishment of Public Educational Officials, but the Plaintiff does not comply with such request,” pursuant to Article 170 of the Local Autonomy Act, the Defendant ordered the Plaintiff to perform the duties of disciplinary action on May 3, 2013.

2. Whether it falls under affairs subject to an order to perform duties;

According to Article 3 of the Local Education Autonomy Act and Article 170(1) of the Local Autonomy Act, duties to be performed by the Minister of Education against the Superintendent of an Office of Education shall be delegated to the Superintendent of an Office of Education, i.e., the management and execution of state delegated duties to the Superintendent of an Office of Education (see Supreme Court Decision 2009Da206, Jun. 27, 2013).

The purpose of the former Public Educational Officials Act (amended by Act No. 11527, Dec. 11, 2012; Act No. 11527, Jun. 12, 2013; hereinafter the same) is to provide for special cases concerning qualifications, appointment, remuneration, guarantee of status, etc. in light of the unique characteristics of the duties and responsibilities of public educational officials who serve the entire nation through education (Article 1). In light of the legislative purpose and specific details of the former Public Educational Officials Act, the disciplinary affairs of public educational officials regulated by the Act and subordinate statutes should be uniformly handled for the benefit of the whole nation, along with those of qualifications of public educational officials, methods or procedures for appointment, remuneration, retraining, training, and guarantee of status, etc.

In addition, according to Article 33(1) of the former Public Educational Officials Act, the Minister of Education may delegate part of his/her right to appoint to the head of an educational administrative agency, etc., as prescribed by Presidential Decree, and Article 3(5)5 of the former Decree on the Appointment of Public Educational Officials (amended by Presidential Decree No. 24547, May 31, 2013) of the former Decree on the Appointment of Public Educational Officials under his/her delegation (amended by Presidential Decree No. 24547, May 31, 2013) stipulates that the Minister of Education delegates a person who has the authority to appoint a school inspector, a school inspector, and a school inspector, a person who has the authority to appoint a school inspector, a school inspector, and a person who has the authority to appoint a school inspector, a person shall be delegated to the superintendent of education

In light of the nature of disciplinary affairs of public educational officials, and the form and content of the regulations under the Public Educational Officials Act and subordinate statutes on the delegation of authority, it is reasonable to deem that disciplinary action against the head of the district office of education, the head of the education bureau of the City/Do office of education, the director of the education bureau of the relevant subordinate agency, and school inspectors and school inspectors are state affairs, and partial execution of disciplinary action also constitutes state affairs. Therefore, the execution of disciplinary action against the head of the district office of education, the head of the education office of the City/Do office of education, the director of the education bureau of the relevant City/Do office of education, and its subordinate officials, should be deemed as the delegated state affairs

Therefore, the instant order for performance of duties is related to the delegated state affairs, and constitutes affairs subject to the duty performance order under Article 170(1) of the Local Autonomy Act. The Plaintiff’s assertion against this is not acceptable.

3. Determination as to whether a duty to perform duties exists

(a) The duty of disciplinary action authority to enforce disciplinary action;

The main text of Article 51(1) of the former Public Educational Officials Act provides that the head of an educational institution, an educational administrative agency, a local government, or an educational research institution (hereinafter “head of an educational institution, etc.”) shall, without delay, request a disciplinary committee having jurisdiction over the relevant disciplinary case to make a disciplinary decision when he/she recognizes that there are grounds for disciplinary action under each subparagraph of Article 78(1) of the State Public Officials Act and grounds for disciplinary action under each subparagraph of Article 69(1) of the Local Public Officials Act. The main text of Article 16 provides that when a disciplinary committee makes a disciplinary decision, he/she shall notify a person who has requested a disciplinary decision, without delay, accompanied by an authentic copy of the written disciplinary decision, and Article 17(1) of the former Public Educational Officials Act provides that the person having authority to make a disciplinary decision shall execute it within 15 days from the date of receipt of the written disciplinary decision. Meanwhile, Article 82(2) of the State Public Officials Act provides that the head of an institution that requested

As above, Article 17(1) of the Decree on Disciplinary Measures against Public Educational Officials provides that a disciplinary authority shall execute a disciplinary decision within 15 days from the date of receipt of the disciplinary decision by the disciplinary committee, and the provision of matters concerning disciplinary measures against public educational officials is intended to protect the rights and interests of public educational officials and to promote the rationality of procedures and fair operation of disciplinary measures in order to ensure fairness in disciplinary action as well as to protect the rights and interests of public educational officials by monitoring the arbitrary operation of disciplinary measures by the appointing authority. A disciplinary authority notified of a written disciplinary decision may file a request for review or reexamination only when it is deemed that the relevant disciplinary decision is light under Article 82(2) of the State Public Officials Act. In full view of the relevant provisions on disciplinary measures against public educational officials, if the head of an educational institution, etc. is notified of a written disciplinary decision by the disciplinary committee, he/she has a duty to execute such disciplinary decision within the statutory deadline unless there are special circumstances, such as legal and de facto obstacles that prevent the relevant disciplinary decision (see Supreme Court Decision 2013Do2229, Apr.

(b) Whether a disciplinary decision made without a request for disciplinary decision by a superintendent of education is effective;

1) According to Article 51(1) of the former Public Educational Officials Act, the head of an educational institution, etc. shall, without delay, request the disciplinary committee having jurisdiction over the relevant disciplinary case to make a disciplinary resolution if he/she deems that there is a cause for disciplinary action against a public educational official under his/her jurisdiction. However, if the disciplinary committee having jurisdiction over the relevant disciplinary case is established in a higher institution, he/she shall apply for a disciplinary resolution to the head of the higher institution. According to the public educational official disciplinary order, a school inspector having jurisdiction over the head of a district office of education and a City/Do office of education shall be under the jurisdiction of the special disciplinary committee (Article 2(3)3 and 5), a disciplinary case involving a higher position and a subordinate position shall be deliberated and decided by the disciplinary committee having jurisdiction over the higher position (Article 2(5)), and a special disciplinary committee shall be established under the Ministry of Education (Article 3(1)). In addition, when the head of an educational institution requests or applies for a disciplinary resolution, he/she shall submit relevant materials necessary for proof after conducting sufficient

Meanwhile, according to the Local Education Autonomy Act, the Superintendent of an Office of Education shall be established in each City/Do as an institution executing affairs concerning education, art, and science of City/Do (Article 18(1)); the Superintendent of an Office of Education shall take charge of affairs concerning personnel management of state public officials and local public officials under his/her jurisdiction (Article 20 subparag. 16); and he/she shall direct and supervise public officials under his/her jurisdiction; and handle matters concerning appointment, education, training, service, disciplinary action, etc. as prescribed by statutes, ordinances

2) As such, a disciplinary measure against a public educational official, such as a supervisory officer, who works for the head of a district office of education or a City/Do office of education, is a state office of education. However, the purport of granting a public educational official’s right to request a disciplinary resolution among the rights to request a disciplinary resolution, which the Minister of Education grants to the superintendent of education at the request of the superintendent of an office of education is to protect the authority to perform duties concerning education, art, and science of the superintendent of an office of education, who is the immediate superior institution of education, and to systematically guarantee local education autonomy, taking into account the fact that a supervisory officer, etc. who works for the head of a district office of education or a City/Do office of education is a state public official belonging to the head of an office of education or higher, but is in the position to be directed and supervised by the superintendent of an office of education at the request of the superintendent of an office of education. According to Article 3 of the Local Education Autonomy Act and Article 170(2) of the Local Autonomy Act, a request for a disciplinary resolution by the Minister of an office of education cannot be deemed to be effective.

4. Conclusion

Therefore, a request for a disciplinary decision made by a defendant without a request for a disciplinary decision made by the plaintiff is null and void due to procedural defects, and a decision made by the Special Disciplinary Committee based on such request shall be deemed as having legal disabilities that could not be executed. Therefore, even if the plaintiff did not implement the above disciplinary decision, it cannot be deemed that he/she is clearly negligent in managing and executing delegated affairs of the State.

Therefore, the Plaintiff accepted the claim of this case and revoked the order to perform the duties of this case, 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.

Justices Ko Young-han (Presiding Justice)