In a case where the Superintendent of an Office of Education of Daejeon Metropolitan City publicly announced an implementation plan for qualification examination for middle school entrance in 201 for persons aged 12 or older based on the "Rules on Qualification Examination for Admission to Middle School in Daejeon Metropolitan City" and submitted an application form to Gap who was enrolled in an elementary school and was under a postponement of duty to attend school in the year following the year in which the date on which he/she reaches five years of age falls and was under the duty to attend school, but was rejected on the ground that he/she did not have a qualification for application because he/she was under nine years of age, the case holding that the above disposition was unlawful on the ground that the above rules on qualification examination for entrance to

In a case where the Superintendent of the Daejeon Metropolitan City Office of Education announced an implementation plan for qualification examination for middle school in 201 for persons aged 12 or older based on the "Rules on Qualification Examination for Admission to Middle School in Daejeon Metropolitan City" (hereinafter "Rules on Qualification Examination") and notified the implementation plan for qualification examination for middle school in the year 201, Gap who was enrolled in an elementary school during the fourth and fourth semester in the year following the year in which the date on which he was five years of age falls and was under a delay of duty to attend an elementary school for one year and submitted an application for examination to the Superintendent of the Daejeon Metropolitan City on the ground that he did not have a qualification because he was under nine years of age, the case held that Article 31(2) and (3) of the Constitution on Compulsory Education, Article 8(1) of the Framework Act on Education, Articles 12 and 13 of the Elementary and Secondary Education, and Article 13 of the Elementary and Secondary Education Ordinance on the qualification examination for entrance to a middle school cannot be seen as unlawful in terms of the above upper school examination examination method.

Article 31(2) and (3) of the Constitution of the Republic of Korea; Article 8(1) of the Framework Act on Education; Article 12 and Article 13 of the Elementary and Secondary Education Act

Plaintiff

Daejeon Metropolitan City Superintendent of the Office of Education (Law Firm Han field, Attorneys Park Jong-young, Counsel for the plaintiff-appellant)

August 24, 2011

1. On April 15, 201, the Defendant’s disposition of restricting application for qualification examination for middle school against the Plaintiff is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On August 7, 2001, the Plaintiff entered the ○ Elementary School located in Chungcheongnam-gun, Chungcheongnam-do (hereinafter omitted) on April 1, 2007, following the year in which the date on which he/she reaches five years of age falls, and attended the △△ Elementary School located in Guri-si (hereinafter omitted) and the ○○ Elementary School during the fourth grade one semester. On September 27, 2010, the Plaintiff was in school at the ○ Elementary and Secondary Education (hereinafter “Act”) from the head of the ○ Elementary and Secondary Education (hereinafter “Enforcement Decree”), Article 14 of the Elementary and Secondary Education Act, and Articles 28 and 29 of the Enforcement Decree of the same Act (hereinafter “Enforcement Decree”) for one year (from September 24, 2010 to September 24, 2011).

B. Based on Articles 10 and 14 of the Regulations on the Examination for Admission to Middle Schools in Daejeon Metropolitan City (amended by the Educational Rules of Daejeon Metropolitan City, No. 402, May 12, 2004 (hereinafter “instant Regulations”), the Defendant publicly announced the implementation plan on March 25, 201 for the first-time examination for admission to middle school (hereinafter “the first-time examination announcement”), and the approximate content is as follows.

1. Date of entry into force of the Table 1: The period of application and receipt on May 14, 201: The period of application from April 11, 201 to April 15, 2011: A person who is at least 12 years of age (including birth before March 1, 1999) and fails to complete an elementary school course as of March 1, 201, and is at least 12 years of age (including birth before March 1, 201). A person who is at least 12 years of age among enrolled at an elementary school (including special schools) may not apply for an elementary school. (b) A person who is at least 12 years of age among enrolled at an elementary school, and whose school register is otherwise managed pursuant to Article 29 of the Enforcement Decree of the Elementary and Secondary Education Act;

C. On April 11, 2011, the Plaintiff submitted to the Defendant an application form for the mid-entry examination notice, but the Defendant rendered a disposition rejecting the application form on April 15, 201 on the ground that the Plaintiff was merely a person nine years of age and did not have a person eligible to apply for the examination (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence No. 6-4, and the result of inquiry and reply to the ○○ Elementary School of this Court, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

The part restricting the age of 12 years or more among the provisions of Article 14 of the Public Notice of the Examination of this case (hereinafter “instant provision”) is null and void for the following reasons, and the instant disposition based on which it is based shall be revoked as unlawful.

A) According to Article 96(2) of the Enforcement Decree of the Act, the purpose of this case’s examination announcement rules is to stipulate matters necessary for the prior examination announcement, and there is no explicit provision or delegation of the restriction on the age of application for the prior examination announcement under Article 43 of the superior law, and Article 96 of the Enforcement Decree of the Act, as there is no basis for the instant provision.

B) According to Article 5-2 of the Regulations on the Examination for Admission to High Schools (Ordinance of the Ministry of Education, Science and Technology), which provides for qualifications for taking an examination for entrance to a high school (hereinafter “examination for entrance”), the age of application for the examination for entrance to a middle school is not restricted. The instant provision limits the application of the same standard as “one-two years of age” without distinguishing those who did not enter an elementary school with respect to the age of application for the examination for entrance to a middle school and those who were exempted from or postponed from the duty to attend an elementary school after entering an elementary school. In addition, pursuant to Article 13(1) of the Act, those who enter an elementary school and graduated from a normal elementary school for the year following the year in which the date on which they reach six years of age falls. On the other hand, those who wish to take an examination for entrance to a middle school after passing the examination for entrance to a middle school without reasonable discrimination among those who did not meet the age of 12 after entering the first entrance to a middle school or the first entrance to a middle school without reasonable reason.

C) Persons subject to compulsory education are merely entitled to receive education pursuant to Article 31(1) of the Constitution, and at least the obligation of them to receive elementary education and education as determined by law is borne by their protectors pursuant to Article 31(2) of the Constitution. Ultimately, according to the guardian’s performance of the obligation to receive education, their children receive compulsory education as a result, and the Plaintiff does not have the obligation to receive elementary education and education as determined by the Elementary Education Act. In addition, the primary school education system is basically realized through school education, but the basic education system provides that the right to receive education is provided through lifelong education (Article 3) and the right to receive education according to their ability and aptitude (Article 9), school education as an educational system for realizing the right to receive education (Article 10), social education (Article 10), and social education (Article 10). Therefore, the obligation to attend school cannot be interpreted as a method of initial education, and the obligation to attend school can not be interpreted as an obligation to attend school formally. Accordingly, among women and children who are under the age to be subject to examination of the Constitution.

D) The instant provision also violates the regulatory legal principle stipulated in Article 4 of the Framework Act on Administrative Regulation, and is also not recognized as the necessity of the regulation and the feasibility of the regulatory purpose, thereby violating the principle of regulation stipulated in Article 5 of the same Act.

2) The defendant's assertion

Article 8 of the Framework Act on Education provides that “Compulsory education shall be elementary education for 6 years and secondary education for 3 years.” Accordingly, Article 12(1) of the Act provides that “The State shall conduct compulsory education under the provisions of Article 8(1) of the Framework Act on Education and shall take necessary measures, such as securing facilities therefor.” Article 13 of the Act provides that the duty to attend school shall be specified with regard to the duty to attend school while specifying specific ages. In light of the contents of each provision above, “mandatory education” under Article 8 of the Framework Act on Education shall be deemed not only delivery of simple knowledge, but also personal education as a whole. Therefore, the essence of the compulsory education system shall be examined by restricting the age of application for the secondary education for children under 12 years by promoting the normalization of elementary school education for children under 12 years. In addition, Article 12(1) of the Act provides that “The compulsory education system is invalid for those who have not completed the elementary school education to enter school at the age of 19 years and the provisions of the Framework Act on Education for early school education shall not be established.

B. Relevant statutes

[Attachment] The entry is as follows.

C. Determination

1) Whether there are grounds for limiting the age to apply for examination

A) Issues

(1) Article 43(2) of the Act and Article 96(2) of the Enforcement Decree of the Act provide for matters necessary for the public notice of mid-to-date entrance examination pursuant to the successive delegation (Article 1). Since the public notice of mid-standing entrance examination, the subject of the public notice, the method and degree of setting questions, the recognition of academic background for successful applicants, the qualification for taking an examination, etc. are each prescribed, not only inside the administrative body, but also within the scope delegated by the superior law, it constitutes an order of delegation that can prescribe matters that can be determined by the superior law within the scope delegated by the superior law.

(2) However, an order of delegation can be determined when an individual delegation exists with a specific scope in the law or upper level order. Here, the specific scope of delegation can not be determined by uniform standards, but at least, when the basic matters of the contents and scope to be stipulated in the delegation order are specifically stipulated in the pertinent law or upper level order, any person can predict the outline of the contents to be stipulated in the delegation order. In this case, the predictability of the delegation provision should not be determined by only one delegation provision, but rather be determined by the overall structure, purport, and purpose of the pertinent delegation provision or upper level order to which the delegation provision belongs, and the form, content, and relevant regulations of the pertinent delegation provision in an organic and systematic manner (see, e.g., Supreme Court Decisions 2001Du5651, Aug. 23, 2002; 2003Du7606, Jul. 22, 2004). Therefore, the examination rules in this case can be determined by comprehensively considering the overall structure and purpose of the Act and its Enforcement Decree, and its limitation can be determined below.

B) Whether it can be based on the overall provisions on compulsory education

(1) Article 31(2) and (3) of the Constitution provides that “All citizens shall have their careed children receive at least elementary education and education as determined by the Act.” Article 8(1) of the Framework Act on Education provides that “Compulsory education shall be elementary education for six years and secondary education for three years.” Meanwhile, Article 12 of the Act provides that “The State shall conduct compulsory education under Article 8(1) of the Framework Act on Education.” Article 13 provides that “The establishment and management of elementary schools, middle schools, special schools, and facilities necessary to send all persons subject to compulsory education shall be provided,” and Article 13 provides that “it shall be provided that all citizens shall enter elementary schools or elementary schools protecting their care from March 1 of the year following the year in which they reach 6 years of age to the age of 12 shall be provided,” and Article 8(1) of the Framework Act on Education shall be provided that education shall be provided at least at the first six-year elementary school and at the first six-year elementary school level during which the date of education falls.”

(2) However, according to Articles 38 and 41 of the Act, an elementary school aims to provide secondary education on the basis of the education received at an elementary school for the purpose of providing the basic elementary education necessary for life. As such, in principle, a middle school aims at providing secondary education on the basis of the education received at an elementary school. Thus, in order to enter an elementary school, a certain academic ability is not required if it reaches a certain age, but if it is intended to enter a middle school, it requires a certain academic ability called “the ability to receive secondary education”. Accordingly, Article 43(1) of the Act provides that “a person who has graduated from an elementary school” or “a person who has been recognized as having an equivalent or higher academic ability pursuant to the Acts and subordinate statutes” shall be deemed to have the academic ability to receive secondary education. However, in the case of a graduate of an elementary school, it is reasonable to view that the legislator expressed his intention to determine whether he has the academic ability to receive secondary education under separate Acts and subordinate statutes.

(3) Accordingly, Article 96 (1) 1 of the Enforcement Decree provides that an early entrance examination notice shall be given as one of the methods recognized as having an educational achievement equal to or higher than the graduates of elementary schools. Article 96 (2) of the Enforcement Decree provides that an early entrance examination notice is a multiple-choice written examination to the extent that the knowledge of the degree of graduation of elementary schools and the ability to apply it can be measured. The notified subject is Korean language, social studies, physical education, music, art, practical education, and English. The standard for passing the notice is 100 points for each subject, and that an early entrance examination notice shall be more than an average of 60 points for all subjects. Accordingly, an early entrance examination notice shall be given as a supplementary education examination notice for the purpose of providing an opportunity to enter a school to an elementary school which is not an elementary school graduate for various reasons, and that an early entrance examination notice shall not be given as an application of compulsory education to the extent that it is necessary to verify the academic achievement and its ability to apply compulsory education.

(4) As such, school education has the meaning as a means of realizing compulsory education, and cannot be deemed as the same concept as compulsory education, and the mid-to-door examination announcement system is a system for verifying "academic background" as a qualification for receiving school education, and therefore, it can be deemed that matters concerning the period of compulsory education, the age of applying for the mid-to-door examination in the examination announcement rules based on all the provisions concerning compulsory education in the upper law, can not be restricted based on the above-mentioned examination announcement rules.

C) Whether the duty to attend school can be based on Article 13 of the Act on the duty to attend school

(1) According to the provision of this case, among those who did not complete elementary school curriculum, those who were 12 years of age or older on the basis of the beginning of the school year (the beginning of March) and those who were 12 years of age or older among those who managed outside of the school register pursuant to Article 29 of the Enforcement Decree are entitled to apply for the mid-to-date examination and public notice pursuant to Article 13 (1) of the Act, it seems that the provision of Article 13 (1) of the Act provides that children shall attend an elementary school from March 1 of the year following the year in which the date on which they reached 6 years of age falls to the end of February of the following year.

(2) However, considering the following circumstances revealed by the relevant Acts and subordinate statutes, i.e., (i) school education is a basic means to realize compulsory education; (ii) in that the entrance examination system provides that applicants for an elementary school shall be “persons who have failed to undergo school education” only if they have certain academic ability for a certain reason; (iii) it is contradictory to restrict their eligibility to attend a middle school based on the age under Article 13 (1) of the Act, which is the provision premised on the receipt of school education. (ii) Since the entrance examination system does not provide for qualifications for “school graduation” but provides for an “middle school” for qualifications for entrance; (iii) it is difficult to restrict the age of entrance to a middle school based on Article 13 (3) of the Act on the date of entrance examination for an elementary school and the date of entrance examination for an elementary school which falls under the age of 15,000 after the date of entrance examination (which falls under the age of 16,000 after the date of entrance examination for an elementary school.)

D) Sub-committee

Ultimately, it is reasonable to view that it is impossible to predict the general principles of the provisions of this case by the Framework Act on Education and the Enforcement Decree of the Act, which are superior laws of the Rules for the Public Announcement of Official Approval, and therefore, the provisions of this case are invalid beyond the scope of delegation by the superior laws and regulations.

2) Whether the method is feasible

A) The Defendant asserts that, in principle, since children under 12 years of age are required to attend elementary schools and attend elementary schools, it is necessary to limit the age of application as stipulated in the instant provision for normalization of elementary school education, and that if they do not restrict the eligibility for applying for examination and announcement on the basis of age, there may occur a concern that only early entrance into elementary schools may arise without intentionally being suspended or exempted from the obligation to attend elementary schools and undergoing normal school education, so the instant provision may be the most appropriate method to prevent such abuse. The Defendant’s argument is reasonable.

(3) According to the provisions of Article 14 of the Act, the period of school attendance at an elementary school may be uniformly exempted or postponed by the head of the school where there are inevitable reasons, such as disease or delay of school attendance at the school of the same age as those of the children who would have been subject to compulsory education for the first and second years. According to the provisions of the above Article 28 of the Enforcement Decree, the period of school attendance at the school of the same age may be sufficiently presented for the reasons that the number of children would be exempted from school attendance at the school of the same age as those of the children who would have been previously exempted from school attendance at the school. According to the provisions of the above Article 14 of the Act, the period of school attendance at the school of the first and second years may be determined based on the premise that the number of children who would have been exempted from school attendance at the school of the same age and who would have been exempted from school attendance at the school of the same age as those of the children who would have been exempted from school attendance at the school of this case.

3) Sub-decisions

Ultimately, the part related to the above judgment of the court of this case among the plaintiff's assertion is reasonable, and since the provision of this case is null and void because there is no ground, the disposition of this case based on the provision of this case, which is null and void without any need to further examine the remaining arguments

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Embryon (Presiding Judge)