2015du48068 Revocation of revocation of the application for registration of establishment and operation of a dance sport institute

A

The head of the Incheon Metropolitan City Office of Education;

Seoul High Court Decision 2014Nu70428 Decided July 3, 2015

June 28, 2018

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. The Act on the Establishment and Operation of Private Teaching Institutes and Extracurricular Lessons (hereinafter referred to as the "Private Teaching Institutes Act") defines the types of private teaching institutes as "facilities which teach knowledge, techniques (including skills) and arts for not less than 30 days or provide them to learners or many unspecified persons as learning places for not less than 30 days (Article 2 subparagraph 1), the types of private teaching institutes shall be classified into private teaching institutes for school curriculum and private teaching institutes for lifelong education or vocational training; private teaching institutes for school curriculum under Article 23 of the Elementary and Secondary Education Act; private teaching institutes for the curriculum under Article 15 (1) of the Act on Special Education for the Disabled Persons, Etc.; private teaching institutes for lifelong education or vocational training under Article 2 of the Elementary and Secondary Education Act (excluding teaching schools for employment at private teaching institutes for vocational education or vocational training); private teaching institutes for each type referred to in Article 2-2 (1) of the Enforcement Decree of the Elementary and Secondary Education Act; and private teaching institutes for lifelong education or vocational training under Article 2-1 (2) of the Enforcement Decree of the Elementary and Secondary Education Act;

Article 23 of the Elementary and Secondary Education Act provides that the Minister of Education shall set the basic matters concerning the standards and contents of the curriculum operated by schools, and according to delegation, the curriculum of the "school curriculum", which was implemented at the time of the disposition of refusal of registration in this case, includes "dance sports" in the curriculum of high school arts department (Article 2007-79 of the Ministry of Education and Human Resources Development notification No. 26 of February 28, 2007, which is included in the curriculum of the "dance" as one of the specialized departments, along with "dance."

한편 국제표준무도(볼룸댄스)란 국제적으로 운동종목으로 취급되는 표준무도인 볼룸 댄스로서 국제댄스스포츠연맹(WDSF, World DanceSport Federation)이 댄스스포츠라고 칭하는 경기용 춤 10종목, 즉 왈츠, 탱고, 퀵스텝, 폭스트롯, 빈왈츠 등 5개 종목의 모던스탠더드 볼룸댄스(Modern Standard Ballroom Dance)와 룸바, 차차차, 삼바, 파소도블레, 자이브 등 5개 종목의 라틴아메리카 볼룸댄스(Latin American Ballroom Dance)를 말한다(대법원 2007. 1. 25. 선고 2005도4706 판결 참조).

In full view of these relevant provisions, a private teaching institute that teaches 'dance' or 'dance sport' included in the school curriculum under Article 23 of the Elementary and Secondary Education Act constitutes a private teaching institute for school curriculum under the Private Institutes Act that teaches 'dance' or ‘dance sport' in the arts field. In addition, a private teaching institute that teaches 'dance' or ‘dance sport' for the purpose of lifelong education or vocational training in the arts field under the Private Institutes Act constitutes a private teaching institute for lifelong education or vocational training in the art field under the Private Institutes Act. Furthermore, the proviso on the scope of dance institutes under the Enforcement Decree of the Private Institutes Act does not limit the scope of a private teaching institute for school curriculum that teaches dance, but limits only the scope of a private teaching institute for lifelong education or vocational training that teaches dance.

In full view of the provisions of Article 2 subparag. 5(a)6 of the Juvenile Protection Act, Article 6(1)20 of the former School Health Act (Amended by Act No. 13946, Feb. 3, 2016); Article 6 subparag. 3 of the Enforcement Decree of the same Act (Amended by Act No. 27831, Feb. 3, 2017); and Article 2 of the Act on the Regulation of Amusement Businesses Affecting the Sports Facilities Act, a dance institute under the Sports Facilities Act is a facility that teaches international standard dance for adults. A private teaching institute for lifelong vocational training that teaches dance in the art department under the Private Institutes Act is a facility that teaches dance for lifelong education or vocational training, regardless of the subject of education or the type of dance. Therefore, a private teaching institute for lifelong education or vocational training, regardless of the type

(1) In a case where a person satisfies the general registration requirements of a private teaching institute under the Private Institutes Act and (2) intends to establish and operate a private teaching institute teaching international standard dance for adults, both dance institutes under the Sports Facilities Act and private teaching institutes for lifelong education and vocational training under the Private Institutes Act

이와 같은 중첩영역에서 국제표준무도를 교습하는 학원을 학원법상 평생직업교육학원으로 등록할 수도 없고 체육시설법상 무도학원업으로 신고할 수도 없게 되어 댄스학원을 개설·운영하려는 사람의 직업의 자유나 영업의 자유 등 기본권이 부당하게 제한 되는 법령해석 결과를 방지하는 한편, 두 시행령 단서 규정의 의미를 상호 조화롭게 이해하려면, '체육시설법 시행령 제6조 [별표 2] 제7호가 무도학원업의 범위를 '수강료 등을 받고 국제표준무도(볼룸댄스) 과정을 교습하는 업'으로 정하면서도 '학원법에 의한 학원을 제외한다고 규정한 것은 성인을 대상으로 국제표준무도를 교습하는 학원이 학원법상 학원의 요건을 갖추어 등록을 마친 경우에는 체육시설법이 별도로 적용되지 않는다는 점을 확인적으로 규정한 것이고, 나아가 '학원법 시행령 댄스학원의 범위 단서 규정'도 성인을 대상으로 국제표준무도를 교습하는 학원이 체육시설법상 무도학원의 요건을 갖추어 신고를 마친 경우에는 학원법이 별도로 적용되지 않는다는 점을 확인적으로 규정한 것으로 해석함이 타당하다.

Therefore, in cases where a person who wishes to establish and operate a standard dance institute files a report on it to a dance institute under the Sports Facilities Act or intends to register it as a private teaching institute for lifelong education or vocational education under the Private Institutes Act, the competent administrative agency should not refuse to accept the report or registration insofar as the relevant private teaching institute satisfies the requirements for the report or registration under the relevant statutes (see Supreme Court en banc Decision 2015Du48655, Jun. 21, 2018

2. According to the reasoning of the first instance judgment cited by the lower court, the Plaintiff filed an application for registration of a private teaching institute under the Private Institutes Act with the type of the private teaching institute as a “private teaching institute for lifelong education and training (e.g., the class of the institute,” and the class of the curriculum as a “drelicing sports (e.g., five kinds of nicotine, five types of dance).” The Plaintiff’s establishment and operation constitutes a private teaching institute for lifelong education or vocational training under the Private Institutes Act, and thus

3. Although the lower court did not separately determine a private teaching institute for school curriculum and a private teaching institute for lifelong education or vocational training, it determined that the instant disposition of refusal of registration was unlawful on the premise that the Plaintiff, who wishes to establish and operate a private teaching institute under the Private Teaching Institutes Act, satisfies the requirements of a private teaching institute under the Private Teaching Institutes Act, and that it is reasonable to apply the Private Teaching Institutes Act to the Plaintiff. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court is justifiable in its conclusion, although there is insufficient portion in the reasoning of the lower judgment, by misapprehending the legal doctrine on

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

The Chief Justice Park Jae-young

Justices Kim Gin-young

Justices Cho Jae-chul