In a case where the term "ex officio closure" is used in an administrative disposition against a kindergarten that provided property directly used for school education as a security, the case holding that the disposition is not a formative disposition that directly generates the effect of the closure center, but a kindergarten closure order based on Article 32 (1) of the Early Childhood Education Act.

In a case where the term "ex officio closure" is used in an administrative disposition against a kindergarten which provides property directly used for school education as a security, the case holding that a kindergarten closure order, which is made based on Article 32 (1) of the Early Childhood Education Act, is a "order for closure," in light of the fact that the competent office of education per se recognizes it as a formative disposition that directly generates the effect of the closure center, even if the expression "ex officio closure" is covered in the disposition and official document, etc., and that the relevant administrative office of education per se cannot be readily deemed as having recognized it as a formative disposition that directly generates the effect of

Articles 8 (3), 32 (1), and 33 of the Early Childhood Education Act, Article 36 of the Enforcement Decree of the Early Childhood Education Act

Plaintiff

The head of the District Education Office of Chungcheongbuk-do Office of Education (Law Firm Cheongju, Attorneys Yu Jae-sik et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2009Nu117 decided May 21, 2009

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

Article 8 (3) of the Early Childhood Education Act provides that "where a person who establishes and operates a private kindergarten intends to close a kindergarten, he/she shall obtain authorization from the superintendent of the competent office of education," and Article 32 (1) provides that "Where the head, founder, or operator of the relevant kindergarten is unable to operate a normal curriculum due to any of the following cases, the competent agency may order him/her to close the kindergarten." Article 32 (2) provides that "Where the head, founder, or operator of the relevant kindergarten violates orders issued by the competent agency under this Act or other education-related Acts and subordinate statutes not less than three times," and Article 33 provides that "Where the competent agency intends to close the kindergarten or facilities pursuant to Article 32, the competent agency shall hold a hearing." Meanwhile, Article 36 of the Enforcement Decree of the Early Childhood Education Act provides that "When the competent agency orders the closure of a kindergarten pursuant to Article 32 (1) of the Act, the founder or operator of the relevant kindergarten shall submit documents and school registers stating the conditions of the operation of the kindergarten students and basic property within three months from the date of the relevant order

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged the facts as stated in its decision. In full view of the relevant provisions of the Early Childhood Education Act, the authority to close a kindergarten is recognized to be the person who establishes and operates a kindergarten, and the competent authorities can order the closure of a kindergarten pursuant to Article 32 (1) of the Early Childhood Education Act if there are certain reasons. The court below determined that the disposition of this case was unlawful since it did not directly generate the effect of the disposition of this case, since the defendant's disposition of this case reaches the plaintiff and at the same time constitutes an ex officio closure of a kindergarten. The disposition of this case is prohibited from operating the kindergarten from June 26, 2008, which was the date of the disposition, and returned the certificate of establishment of a kindergarten and official seal to the defendant by July 7, 2008, and it did not directly create the effect of the disposition of this case, since it did not directly create the effect of the disposition of this case.

However, we cannot accept the above determination by the court below for the following reasons.

It is true that the expression "ex officio closure" is written in the instant disposition and the official text in the name of the defendant. However, in light of the following circumstances, it cannot be readily concluded that the defendant, from the date of the instant disposition, was aware that it was a formative disposition that caused the effect of the closure of a kindergarten at the same time. In addition, the part that the defendant could not operate the instant kindergarten from the date of the disposition and returned the certificate of authorization for establishment of a kindergarten and his official seal among the instant disposition, and it can be understood that the defendant urged the plaintiff to faithfully implement the order while closing a kindergarten pursuant to Article 32 (1) of the Early Childhood Education Act, and therefore, it cannot be a basis for deeming the instant disposition as a formative disposition. Rather, the instant disposition is stipulated in the instant disposition (Article 32 of the Early Childhood Education Act No. 1-2) as a basis for the disposition of the instant disposition, the Defendant conducted a hearing under Article 33 of the Early Childhood Education Act prior to the instant disposition, and the Defendant notified the Plaintiff of the disposition and submitted the pertinent disposition under Article 32 (1) of the Enforcement Decree.

Nevertheless, the court below determined that the disposition in this case is not an order for closure based on Article 32 (1) of the Early Childhood Education Act, but a formative disposition that directly generates the effect of the closure center. In so doing, the court below erred by violating the rules of evidence and by misapprehending the legal principles on the interpretation of the disposition, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)