[1] Whether Article 6(2)3 of the former Regulations on University Tuition and Admission Fees that stipulate that “a person who is in school and has expressed his/her intention to retire from school” should also apply mutatis mutandis to “a case where a person who is in school and has been removed from school due to his/her no school uniforms” (affirmative), and whether Article 3 of the Addenda to the Regulations on University Tuition (amended by December 2, 2010) violates the Constitution (affirmative)

[2] The case holding that Article 6 (2) 3 of the former Regulations on University Tuition and Admission Fees shall apply mutatis mutandis to the case where a graduate school student, who was removed from school, failed to return the enrollment fees after the payment of the enrollment fees, sought the refund of the enrollment fees against the school juristic person

[1] According to Article 6 (2) 3 of the former Regulations on Tuition Fees and Admission Fees (amended by Ordinance of the Ministry of Education, Science and Technology No. 83, Dec. 2, 2010; hereinafter “Rules”), where a person who is in school has expressed his/her intention of withdrawal from school, the title already paid according to the standards set forth in the attached Table is changed to “Rules on University Tuition” upon the amendment of the Rules by Ordinance of the Ministry of Education, Science and Technology. Article 6 (2) 3-2 was newly established and “where a person in school was removed from school because he/she was not recovered from school” was not required to return the registration fees already paid according to the standards set forth in the attached Table [Attachment Table 3], and Article 6 (2) 3-2 of the Addenda of the amended Rules does not apply to a person who did not return his/her property rights after his/her temporary retirement from school due to the lack of reasonable interpretation of the said Rules. However, the amended Rules does not apply to a person who did not return his/her property rights after temporary retirement from school.

[2] In a case where a graduate school student, who was removed from school due to his/her school absence after the payment of the enrollment fee, sought a refund of the enrollment fee against the school juristic person, the case holding that Article 6 (2) 3 of the former Regulations on University Tuition and Admission Fees (amended by Ordinance of the Ministry of Education, Science and Technology No. 83, Dec. 2, 2010) should apply mutatis mutandis, and the school juristic person shall refund part of the enrollment fee already paid.

[1] Article 6(2)3 of the former Regulations on Tuition and Admission Fees (amended by Ordinance of the Ministry of Education, Science and Technology No. 83, Dec. 2, 2010; see Article 6(2)3 of the current Regulations on University Tuition), Article 6(2)3-2 of the Regulations on University Tuition, Articles 1 and 3 of the Addenda (amended by Ordinance of the Ministry of Education, Science and Technology, December 2, 2010); Articles 11(1) and 23(1) of the Constitution / [2] Article 6(2)3 of the former Regulations on University Tuition and Admission Fees (amended by Ordinance of the Ministry of Education, Science and Technology No. 83, Dec. 2, 2010; see Article 6(2)3-2 of the current Regulations on University Tuition; Article 6(2)3-2 of the Addenda (amended by Ordinance of the Ministry of Education, Science and Technology, etc.) of the Regulations on University Tuition.

Plaintiff

School juristic persons: Hongk Private Teaching Institutes

August 12, 2011

1. The defendant shall pay KRW 3,830,833 to the plaintiff.

2. The plaintiff's remaining claims are dismissed.

3. One-six of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay 4,597,000 won to the plaintiff.

1. Facts of recognition;

A. On March 1, 2007, the Plaintiff admitted to a master’s degree course at night at the industrial, art, and graduate school operated by the Defendant, and paid KRW 4,597,00 of the enrollment fee of the second semester that begins from September 1, 2007 on August 31, 2007, and applied for a regular leave of absence on September 12, 2007. The Plaintiff did not return to a master’s degree course at the first semester of 2010 after the Plaintiff’s regular leave of absence on September 12, 2007.

B. According to Article 27(2) of the Regulations on the Special Graduate School of the Hongnam University, which applies to the above graduate school, the total period of leave of absence shall not exceed four semesters in the day and five semesters in the night. According to Article 29(1) of the Regulations, a person who does not return to the school even after the lapse of the period of leave of absence under Article 27, is removed from the school. According to Article 26(2) of the Regulations, the refund of tuition fees and admission fees already paid shall be governed by the Regulations on University Tuition and Admission Fees.

C. On May 10, 2010, the Defendant removed the Plaintiff pursuant to Article 29 subparag. 1 of the above school regulations.

2. Determination

(a) Contents and amendments of the regulations;

According to Article 6 (2) 3 of the former Regulations on Tuition and Admission Fees (amended by Ordinance of the Ministry of Education, Science and Technology No. 83, Dec. 2, 2010; hereinafter “Rules”), “Where a person who is in school expresses his/her intention of withdrawal from school,” the former Regulations shall be returned in accordance with the standards specified in the attached Table. The title was changed by Ordinance of the Ministry of Education, Science and Technology No. 83, and the title was newly established under Article 6 (2) 3-2, and “where a person who is in school was removed from school due to his/her absence from school,” and “where a person who is in school was removed from school is removed from school,” the registration fees already paid in accordance with the attached Table [Attachment Table] was returned. However, according to Article 1 of the Addenda of Ordinance of the Ministry of Education, Science and Technology, and Article 6 (2) 3-2 of the Addenda, the amended provisions of Article 3-2 of the above Rules shall apply only to the person who first fell into the Ministry of Education, Science and Technology.

B. unconstitutionality of Article 3 of the above Addenda

However, after paying a registration fee, “where a person who is on temporary leave of absence expresses his/her intention of withdrawal from school” shall return the registration fee in accordance with the criteria set forth in the attached Table, and “where a person who is on temporary leave of absence is removed from school because he/she does not return the registration fee,” the fact that the student’s failure to return the registration fee is excessively discriminated against and infringes on his/her property right without any particular reasonable reason, and even if Article 6(2)3-2 of the Rules is not newly established, Article 6(2)3 of the Rules shall apply mutatis mutandis to “where a person on temporary leave of absence is removed from school because he/she does not return the registration fee in accordance with the criteria set forth in the attached Table.” In such a case, it is very unfair that the registration fee is not returned to the person who was temporarily closed after the payment of the registration fee, but the registration fee is not returned to the person who was removed from school due to his/her failure to return it after temporary leave of school, and thus, the registration fee cannot be returned in accordance with the current provision 1).

C. Sub-decision

Therefore, the Defendant should return KRW 4,597,000, the registration fee of KRW 5/6,830,833(t) to the Plaintiff, who was removed from school due to temporary absence before the lapse of 30 days from the beginning date of the second semester in 2007, pursuant to the attached Table No. 2, to the Plaintiff who was removed from school.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] [Attachment] Standard for Refund of Tuition or Admission Fees (Related to Article 6(2)]: Omitted

Judges Park Jong-young