[1] Whether the Minister of Education may directly file a lawsuit with the Supreme Court as to whether the Ordinance violates the statutes or regulations of the Ordinance, where the Superintendent of an Office of Education rejects a request for reconsideration (affirmative)

[2] Whether a local government may enact a municipal ordinance on matters concerning the delegated affairs of an agency (negative in principle), and the method of determining whether a local government’s administrative affairs prescribed by the statute are autonomous affairs or delegated affairs of an agency

[3] Whether the affairs concerning the status of teachers are state affairs (affirmative)

[1] Articles 3 and 28(4) of the Local Education Autonomy Act, Article 172(7) of the Local Autonomy Act / [2] Articles 9 and 22 of the Local Autonomy Act / [3] Article 31(6) of the Constitution of the Republic of Korea, Article 43(2) of the Public Educational Officials Act, Articles 43(1) and 56(1) of the Private School Act, Articles 3 and 7(1) of the Special Act on the Improvement of Status of Teachers and the Protection of Educational Activities, Articles 6(6) and 6-2 (see Article 6-2 of the Enforcement Decree of the Special Act on the Improvement of Status of Teachers and the Protection of Educational Activities, Article 7 of the Framework Act on Education, Article 9(2)5 of the Local Education Autonomy Act, Article 2 of the Local Education Autonomy Act

[1] Supreme Court Decision 2013Da98 Decided May 14, 2015 (Gong2015Sang, 810) / [2/3] Supreme Court Decision 2012Da145 Decided February 27, 2014 (Gong2014Sang, 736)

(2) The Minister of Education (Attorney Seo Young-young et al., Counsel for the plaintiff-appellant)

Jeollabuk-do Council (Law Firm Purpose, Attorney Kim Jin-jin, Counsel for defendant-appellant)

The Superintendent of the Provincial Office of Education of Jeollabuk-do (Attorney Kim Dong-hwan, Counsel for defendant)

January 12, 2017

A decision made by the Defendant on December 14, 2015 regarding the Ordinance on the Autonomous Ordinance of the Province of the Jeollabuk-do on the Province of the Province of Jeollabuk-do is invalid. Of the litigation costs, the part arising from the participation is borne by the Defendant’s Intervenor, and

The same shall apply to the order.

1. The resolution of the Ordinance of this case and a summary of its contents

The following facts may be acknowledged in full view of the contents of evidence No. 1-1 to No. 3 of the evidence No. 1-1 and the purport of the whole pleadings.

A. On December 14, 2015, the Defendant passed a resolution on the proposed Ordinance of the Province of Jeollabuk-do (hereinafter “instant Ordinance”). On January 5, 2016, the Plaintiff: (a) ordered the Intervenor to the Defendant to request reconsideration on the grounds that “The instant Ordinance would violate the laws and subordinate statutes by forcing the self-government organization not stipulated in the upper law to be mandatorily established; or cause confusion in school activities and school affairs, thereby significantly impairing the public interest; (b) on the same day, the Defendant reported that “the instant Ordinance was already promulgated on January 4, 2016, and thus it is impossible to request reconsideration.” The Plaintiff directly filed the instant lawsuit seeking the invalidity of the instant Ordinance pursuant to Article 172(7) of the Local Education Autonomy Act, which is applicable mutatis mutandis pursuant to Article 3 of the Local Education Autonomy Act (hereinafter “Education Autonomy Act”).

B. The proposed ordinances of this case guarantee the right of students, parents, teachers, and employees to participate in school operation, thereby realizing a democratic school community (Article 1); schools shall have student associations, parents’ associations, teachers’ associations, and employees’ associations as autonomous organizations (Articles 4 through 7); and shall deliberate matters concerning the enactment and amendment of school rules, school curriculum, school budget, etc. at the school affairs council (Article 8); and shall establish a committee for personnel management of teachers (Article 9); and shall have the head of the school consult on matters concerning the personnel affairs of teachers, such as the establishment of standards for the request for transfer and the postponement of transfer (Article 9).

2. Judgment on the main defense of this case

The Defendant and the Intervenor asserted to the effect that the instant lawsuit is unlawful on the grounds that there are no provisions in the Education Autonomy Act regarding the reconsideration of the resolution of the City/Do Council on education and arts and the filing of a lawsuit. As such, there is no room to apply the Local Autonomy Act to this matter. The Education Autonomy Act argues to the effect that, if the Superintendent of the Office of Education rejects a request for reconsideration and the Ordinance is promulgated by the Minister of Education, there is no provision that the Minister of Education directly

However, Article 3 of the Education Autonomy Act provides that the relevant provisions of the Local Autonomy Act shall apply mutatis mutandis to the establishment of an institution in charge of the affairs concerning education, arts, and science of local governments and the establishment, organization, operation, etc. of such institution, except as otherwise expressly provided for in this Act. Article 28(4) provides that the Superintendent of an Office of Education may direct or directly file a lawsuit with the Superintendent of an Office of Education in cases where the matters resolved by the City/Do Council violate Acts and subordinate statutes even though the Superintendent of an Office of Education accepted a request for reconsideration request and received such request for reconsideration request. Article 28(4) of the Education Autonomy Act provides that where the Superintendent of an Office of Education requested reconsideration request the Superintendent of an Office of Education, it is difficult to deny the authority of the Minister of Education to file a lawsuit, and where the Superintendent of an Office of Education refuses such request for reconsideration by applying mutatis mutandis Article 172(7) of the Local Autonomy Act, allowing the Minister of Education to file a lawsuit if the matters resolved by the Superintendent of an Office of Education violate the Acts and subordinate statutes (see Supreme Court Decision 20136Da1369, May 29, 2014, etc.

3. Judgment on the merits

A. According to Articles 22 and 9 of the Local Autonomy Act, matters that a local government may enact municipal ordinances are limited to autonomous affairs, which are the affairs inherent in the local government, and those delegated to the local government under individual Acts and subordinate statutes, and matters concerning the affairs delegated to the head of a local government or delegated to the head of a subordinate local government, in principle, do not fall under the scope of the enactment of municipal ordinances. In addition, determination as to whether the affairs prescribed by the head of a subordinate local government are autonomous affairs or delegated to the head of a subordinate local government shall take into account the form and intent of the relevant Acts and subordinate statutes. However, determination as to whether the affairs require the head of a subordinate local government to perform are based on whether the affairs require a uniform operation on a national scale, or the subject of the ultimate responsibility for such affairs, etc. (see, e.g., Supreme Court Decisions 9Da30, Sept. 17, 1999; 201Du12153, Apr. 11, 2013).

B. Article 9(1) of the Ordinance provides that a school shall have a faculty personnel management advisory committee in order to seek advice on matters concerning teachers' personnel affairs. Paragraph (2) of the same Article provides for the assignment of class members, the appointment of teachers holding positions, the division of teachers' duties, the establishment of standards for the request for transfer and the postponement of transfer, matters concerning the selection of eligible persons (Paragraph (2), reward and punishment, matters concerning orders for transfer, and other matters concerning personnel affairs (Paragraph (3) (Article 4), and other matters concerning personnel affairs (Article 9). In addition, Article 9 of the Ordinance provides for the organization of the faculty personnel management advisory committee (Paragraph (3)), the term of office of advisory members (Paragraph (4)), the principle of disclosure of meetings of the advisory committee (Paragraph (6)), and the consultation result of the advisory committee on teachers' personnel affairs (Paragraph (7)). It is difficult to conclude that there is no special relation between the person subject to the request for transfer and the establishment and postponement of transfer of the standards and the status of the faculty members in the school.

C. However, as seen below, matters concerning the status of teachers need to be determined by law in a uniform manner, and the State bears considerable expenses for this purpose, affairs related thereto shall be deemed State affairs (see Supreme Court Decision 2012Da145, Feb. 27, 2014, etc.).

(1) Article 31(6) of the Constitution provides that fundamental matters concerning the status of teachers shall be prescribed by the Act to ensure the effective guarantee of fundamental rights to be educated by citizens. Here, matters concerning the status of teachers refer to matters concerning the acquisition, maintenance, loss of status, such as qualifications, appointment, remuneration, service, guarantee of status, guarantee of rights and interests, disciplinary action, etc. of teachers.

(2) As to the guarantee of the status of teachers, Article 43(2) of the Public Educational Officials Act provides that “no public educational official shall be demoted, temporarily laid off, or dismissed against his/her will without a sentence, disciplinary action, or any other reason prescribed by the Public Educational Officials Act.” Article 56(1) of the Private School Act provides that “No teacher of a private school shall be subject to any unfavorable disposition, such as temporary retirement or dismissal against his/her will, unless he/she is subject to a sentence, disciplinary action, or any other reason prescribed by the Private School Act.” In addition, the Ministry of Education has established an appeals review committee for the examination of disciplinary action against teachers and other unfavorable disposition against his/her will (Article 7(1) of the Special Act on the Improvement of the Status of Teachers and the Protection of Educational Activities). In order to deliberate on matters concerning the protection of educational activities of teachers, the Committee for the Protection of School Rights and the City/Do Office of Education shall establish a City/Do Educational Areas Protection Committee (Articles 6 and 6-2

(3) The State and local governments have to establish and implement a policy necessary to secure educational finance stability (Article 7 of the Framework Act on Education). In this regard, the Local Education Subsidy Act was enacted to ensure the balanced development of education by providing all or some of the financial resources necessary for the establishment and management of educational institutions by local governments, and the Minister of Education grants local governments general subsidies and special subsidies (Articles 1, 5, and 5-2 of the Local Education Subsidy Act). In addition, Article 3 of the Special Act on the Improvement of Teachers’ Status and the Protection of Educational Activities provides that the State and local governments shall give special preferential treatment to the remuneration of teachers, and Article 43(1) of the Private School Act provides that the State and local governments may grant subsidies or provide other subsidies for the support of private school education, if deemed necessary for the promotion of education.

(4) Article 9(2)5 of the Local Autonomy Act provides that the duties concerning the promotion of education, sports, culture, and arts shall be the duties of local governments. Article 2 of the Local Education Autonomy Act provides that the duties concerning education and arts of local governments shall be the duties of the Special Metropolitan City, Metropolitan City, and Do, but the status of teachers shall not be prescribed.

D. Therefore, Article 9 of the Ordinance provides that a school shall establish a teachers’ personnel management advisory committee in order to deliberate on matters concerning teachers’ personnel management, and that the head of the school shall accept the results of consultation with the advisory committee, unless there is a special reason, is against the law, which goes beyond the bounds of the legislative authority of the Ordinance.

4. Conclusion

Therefore, as long as Article 9 of the Ordinance of this case does not take effect as illegal, the resolution of this case shall be denied in its entirety. Thus, the plaintiff's claim seeking the exclusion of the validity of the resolution shall be accepted, and the costs of lawsuit shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating

Justices Kim Shin (Presiding Justice)