Whether the authority of the Minister of Education to request the reconsideration of the matters resolved by the City/Do Council concerning education and arts is independent of the authority of the superintendent of education to request the reconsideration (affirmative), the period of request for reconsideration (within 20 days from the date of receipt of the matters resolved by the City/Do Council), and the requirements of the Minister of Education to directly file a lawsuit with the Supreme Court concerning

In full view of Articles 28(1) and 3 of the former Local Education Autonomy Act (amended by Act No. 11690, Mar. 23, 2013); Articles 172(1) and (7) of the Local Autonomy Act; Articles 172(1) and (7) of the Local Autonomy Act; and the purport and purport of the Constitution guaranteeing local autonomy, the superintendent’s authority to request the reconsideration of the matters of City/Do Council concerning education and arts and arts and the authority to request the reconsideration of the Minister of Education is separate from the authority to request the reconsideration of the matters of City/Do Council. Meanwhile, if the Minister of Education makes a request for reconsideration, the superintendent’s authority to request the reconsideration of the matters of City/Do council concerning education and arts and the authority to request the reconsideration of the Minister of Education shall be independent from the date on which the matters of City/Do Council are transferred. Therefore, in order to directly file a lawsuit with the Supreme Court on the matters of City/Do Council, the period of request for reconsideration shall be within 20 days from the date of receipt of such matters

Articles 3 and 28(1) of the former Local Education Autonomy Act (Amended by Act No. 11690, Mar. 23, 2013); Article 172(1) and (7) of the Local Autonomy Act

Constitutional Court en banc Order 2012Hun-Ma1 Decided September 26, 2013 (Hun-Gong204, 1304)

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

[Defendant-Appellee] Plaintiff 1 and 2 others

October 31, 2013

The instant lawsuit is dismissed. The costs of lawsuit are assessed against the Plaintiff.

1. Enactment of the result of the Ordinance of this case

The following facts may be acknowledged in full view of the evidence Nos. 1 and 2-1, 2, 3, 4-1, 2, 6-1, and 2 of the evidence Nos. 1, 2-2, and 6-2 of the whole pleadings.

A. On December 19, 201, the Defendant passed a resolution on the Seoul Special Metropolitan City Ordinance on the Enactment of Students' Human Rights (hereinafter "Ordinance") and transferred the Ordinance to the Superintendent of the Seoul Special Metropolitan City Office of Education on the 20th day of the same month. The Plaintiff did not request the Superintendent of the Seoul Special Metropolitan City Office of Education to request the reconsideration of the Ordinance. The Seoul Special Metropolitan City Superintendent of the Office of Education requested the Defendant to reconsideration on the ground that some of the contents of the Ordinance are in violation of statutes.

B. However, after the superintendent of the Seoul Special Metropolitan City Office of Education returned to work, withdrawn the request for reconsideration on January 20, 2012. Accordingly, the Plaintiff requested the superintendent of the Seoul Special Metropolitan City Office of Education to request the reconsideration of the Ordinance on the same day, but the superintendent of the Seoul Special Metropolitan City Office of Education promulgated the Seoul Special Metropolitan City Ordinance on the Human Rights of Students (Seoul Special Metropolitan City Ordinance No. 5247) on January 26, 2012.

C. On January 26, 2012, the Plaintiff filed the instant lawsuit seeking a judgment that the resolution on the instant Ordinance is invalid.

2. Summary of the plaintiff's assertion

The Plaintiff is the cause of the instant claim. ① Without any legal basis as to how to guarantee the human rights of students, the proposed ordinances of this case deviates from the bounds of the legislative authority by prescribing matters concerning the restriction on the rights of the superintendent of education, founders of schools, principals of schools, teachers and staff, etc.; ② Article 6 of the proposed ordinances of this case prohibits all physical punishment against students; Article 18(1) of the Elementary and Secondary Education Act; Articles 9(1), 31(8) of the Enforcement Decree of the Elementary and Secondary Education Act; and Article 13, 16, 18, 19, and 20 of the proposed ordinances of this case excessively restrict the autonomy of education, autonomy of schools, religious freedom of education of private schools, etc.; ④ Articles 33 and 34 of the proposed ordinances of this case; and Article 34 of the proposed ordinances of this case; and also, Article 38 of the proposed ordinances of this case, the Board of Education’s independent recommendation of the Board of Education to secure human rights of students, etc.

3. Determination on the legitimacy of the instant lawsuit

Article 28(1) of the former Local Education Autonomy Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same shall apply) provides that " If the Superintendent of an Office of Education deems that a resolution of the Educational Committee or the City/Do Council concerning education, art or science violates Acts and subordinate statutes or substantially impedes the public interest, he/she may request reconsideration within 20 days from the date such resolution is transferred, stating the reasons therefor. Where the Superintendent of an Office of Education receives a request for reconsideration from the Minister of Education, Science and Technology, he/she shall request reconsideration from the Board of Education or the City/Do Council." Article 3 of the former Local Education Autonomy Act provides that "If he/she deems that a resolution of the local council violates Acts and subordinate statutes or substantially undermines the public interest, he/she may request reconsideration from the competent Minister or the head of the competent Do Council within 7 days from the date he/she receives a request for reconsideration, stating the reasons for such request by the competent Mayor/Do Governor."

In full view of the contents, form, structure, and purport of the relevant statutes and the purport of the Constitution guaranteeing local autonomy, etc., the authority of the superintendent of education to request the reconsideration of the matters of the City/Do council concerning education and arts and the authority of the superintendent of education to request the reconsideration of the Plaintiff is separate and independent. Meanwhile, if the request for the reconsideration of the Plaintiff is made by the superintendent of education, the superintendent of education may request the reconsideration upon such request. As such, the period for requesting the request for reconsideration of the Plaintiff shall be within 20 days from the date on which the matters of the City/Do council are transferred to the superintendent of education, just as in the period for requesting the reconsideration of the superintendent of education. Therefore, in order to directly file a lawsuit against the matters of the resolution of the City/Do council, the period shall be within 20 days from the date on which the superintendent of education requested the superintendent of education to request the reconsideration of the City/Do council within

Therefore, even if the superintendent of the Seoul Special Metropolitan City Office of Education received the bill of this case on December 20, 201 and withdrawn it on January 9, 201, which was within 20 days after the transfer of the bill of this case to the defendant on December 20, 2012, it cannot be deemed that the plaintiff cannot be deemed that there was a legal obstacle to the plaintiff's failure to request the request for reconsideration, which is his own independent authority. Thus, the plaintiff requested the Seoul Special Metropolitan City Superintendent's Office of Education to request the request for reconsideration on January 20, 2012, which is apparent that the 20 days have elapsed from the transfer date of the bill of this case to the expiration date of the 20-day period of request

4. Conclusion

Therefore, the lawsuit of this case is dismissed, and the costs of lawsuit are to be borne by the plaintiff who is the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim So-young (Presiding Justice)