Whether such affairs as securing a site for a school established and operated by a local government and paying a fee for the site are autonomous affairs, which are the inherent affairs of a local government (affirmative in principle), and whether unjust enrichment under the Civil Act may be established in a case where a local government arbitrarily uses state-owned property as a school site beyond the scope of

In full view of the purport of Article 31(2), (3), (4), and (6) of the Constitution of the Republic of Korea; Article 9(2)5(a) of the Local Autonomy Act; Article 12(1) and (2) of the Elementary and Secondary Education Act; Articles 39(1), 40, and 41(1) of the former Local Education Autonomy Act (wholly amended by Act No. 8069 of Dec. 20, 2006); Articles 5(1) and 7(1) of the Framework Act on Education; Article 7(1) of the Local Education Act; and Article 41(1) of the Local Education Subsidy Act, affairs such as securing sites for schools established and operated by a local government; provision of site fees, etc. are autonomous affairs, which are the inherent affairs of a local government, which is the subject of local education autonomy; the State is obligated to provide financial support to a local government that realizes local education autonomy within the scope of law and budget; and where a local government uses State-owned property without legal grounds, it can be established under civil law.

Article 31(2), (3), (4), and (6) of the Constitution of the Republic of Korea; Article 9(2)5(a) of the Local Autonomy Act; Article 12(1) and (2) of the Elementary and Secondary Education Act; Article 39(1) (see current Article 37(1)) of the former Local Education Autonomy Act (wholly amended by Act No. 8069, Dec. 20, 2006); Articles 40 (see current Article 38), 41(1) (see current Article 39(1)), 5(1), and 7(1) of the Framework Act on Education; Article 1 of the Local Education Subsidy Act; Article 741 of the Civil Act

Constitutional Court en banc Order 2004Hun-Ma3 Decided December 22, 2005 (Hun-Gong111, 80)

Republic of Korea (Law Firm East, Attorney Choi Choi-woo, Counsel for defendant-appellant)

Busan Metropolitan City (Attorney Jin-Jin, Counsel for defendant-appellant)

Busan District Court Decision 2010Na6618 Decided July 23, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 through 3

A. To determine whether a legal affair is autonomous affairs or an agency’s delegated affairs, a prior consideration should be given to the form and intent of the statutory provision on the matter. However, other factors should also be given to whether the nature of the affair requires a nationwide uniform process, bearing the relevant expenses, and who is the subject of final responsibility (see, e.g., Supreme Court Decision 2012Du183, Feb. 27, 2014).

B. Article 31(2) and (3) of the Constitution of the Republic of Korea provides that all citizens are obliged to have their children under their care receive at least elementary education and legal education, and that compulsory education should be free of charge. However, the conclusion that the central government should bear the direct compulsory education expenses from the above provision is not derived, and the central government does not have to bear all the expenses due to the nature of compulsory education.

Article 31(4) and (6) of the Constitution of the Republic of Korea delegate the establishment of educational system and educational finance system to the legislators except as otherwise expressly provided for in the Constitution. Therefore, the legislators may seek various policy measures for the loyalty of education and educational finance, taking into account various factors and circumstances, such as the financial status of the central government and local governments and the level of compulsory education (see Constitutional Court en banc Decision 2004Hun-Ma3, Dec. 22, 2005). However, the Local Autonomy Act provides for the establishment, operation and guidance of elementary schools, middle schools, and high schools (Article 9(2)5(a)) in detail while prescribing the affairs concerning the promotion of education, sports, culture, and arts as autonomous affairs of the local government, and provides for the State and local governments with the necessary measures such as securing facilities therefor. Article 12(1) and (2) of the former Local Government Act provides for the establishment and operation of educational curriculum and special educational expenses (Article 36(1)1 of the Local Government Act).

In full view of such constitutional provisions and the purport of the above provisions, affairs such as securing sites and paying fees for the site established and operated by a local government are autonomous affairs, which are inherent affairs of a local government, which are the subject of local education autonomy, unless there are special circumstances. The State is obligated to provide financial support to the local government that realizes local education autonomy within the scope of law and budget. If a local government uses state-owned property as a school site without any legal cause beyond the scope of support of such state, unjust enrichment can be established under the Civil Act.

C. The court below accepted the judgment of the first instance, and recognized the fact that the defendant occupied and used the land of this case, which is owned by the plaintiff from September 15, 2004 to November 7, 2005, as school sites of ○○ Middle School without obtaining permission for use from the plaintiff. The defendant occupied and used the land of this case without any title during the above period without any legal ground and suffered profit without causing damage to the plaintiff who is the owner. Thus, the court below determined that the defendant was liable to return unjust enrichment to the plaintiff, barring special circumstances.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error of law by misapprehending the legal principles as to unjust enrichment, etc. as alleged in the grounds

2. As to the fourth ground for appeal

Upon citing the judgment of the court of first instance, the court below rejected the Plaintiff’s claim on the confusion of the Defendant on the ground that the Plaintiff’s claim for restitution of unjust enrichment against the Defendant and the obligation to provide financial resources under the Local Education Subsidy Act are not arising from the same legal relationship, but separate rights and obligations corresponding to each other, not corresponding to each other, and thus, confusion does not occur because both parties have reverted to the Plaintiff. In spite of the change of the management agency,

In light of the relevant legal principles and records, the above judgment of the court below is just and there is no error of law by misapprehending the legal principles as to confusion as alleged in the grounds of appeal.

3. As to grounds of appeal Nos. 5 and 6

Examining the reasoning of the judgment below in light of the records, the court below is just in holding that the plaintiff's exercise of the right to claim the return of unjust enrichment of this case does not constitute an unfair exercise of rights or abuse of rights against the principle of good faith, and there is no error of law by misapprehending the legal principles

4. As to ground of appeal No. 7

The allegation in the grounds of appeal on this part is a new argument that only comes before the final appeal and cannot be a legitimate ground of appeal.

5. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ko Young-han (Presiding Justice)