(영문) 서울행정법원 2020.1.14. 선고 2019구합66583 판결

In the first place, the part concerning private kindergartens in Article 53-3 of the Regulations on the Finance and Accounting of Private School Institutions promulgated by the Defendant on February 25, 2019 is invalid. In the second place, the part concerning private kindergartens in Article 53-3 of the Rules on the Finance and Accounting of Private School Institutions, promulgated by the Defendant on February 25, 2019, shall be revoked.

Reasons

1. Details of the disposition;

A. The Plaintiffs are those operating private kindergartens of non-corporate form.

B. Article 53-3 of the Regulations on the Finance and Accounting of Private School Institutions (hereinafter referred to as “instant Rules”) amended by Ordinance of the Ministry of Education No. 175 on February 25, 2019, and Article 175 of the Addenda Ordinance of the Ministry of Education are as follows:

The budget, settlement of accounts, and accounting affairs belonging to the accounts of school expenses of various levels below high schools and lower than those designated by the Minister of Education shall be conducted by an information processing unit designated by the Minister of Education: Provided, That this shall not apply to various kinds of schools or foreign kindergartens falling under any of the following subparagraphs which do not receive subsidies (limited to personnel expenses and school operation expenses) from the State or local governments under Article 43 (1) of the Act; 2. Various kinds of schools under subparagraph 5 of Article 2 of the Elementary and Secondary Education Act; 2. Various kinds of schools under Article 175 of the Enforcement Decree of the Education Ordinance of the Ministry of Foreign Kindergarten under Article 16 (1) of the Early Childhood Education Act; and the Rule shall enter into force on March 1, 2019: Provided, That in cases of any of the following schools or kindergartens, it shall enter into force on March 1, 2020:

2. Kindergartens (excluding kindergartens for foreigners referred to in Article 16 (1) of the Early Childhood Education Act, which do not receive subsidies (limited to personnel expenses and school operation expenses) from the State or local governments referred to in Article 43 (1) of the Act on Special Cases concerning the Disclosure of Information by Education-Related Institutions, the current number of which is less than 200 persons on the basis of the information published in October 2018 pursuant to Article 5-2 of the Act on Special Cases concerning

C. “Information processing equipment designated by the Minister of Education” under Article 53-3 of the instant Rule means “Eduzine,” a local educational administration and financial integration system, which was opened in 2008, in order to electronically process the accounting affairs of the Ministry of Education, the Office of Education, the Office of Education, and schools of all levels. In the past, the scope of implementation of “Eduzine,” which was excluded from the previous scope of implementation of “Eduzine.” However, from March 1, 2019 through the above amendment, for private kindergartens with 20 or more current employees, the scope of implementation of “Eduzine, regardless of the current employees,” was expanded.

[Reasons for Recognition] Uncontentious Facts, Entry B in Evidence Nos. 1 and 7, the purport of the whole pleadings

2. The plaintiffs' assertion

In Article 53-3 of the Rules of this case, the part concerning private kindergartens (hereinafter referred to as "the provisions of this case") imposes, without mediating the execution act, the obligation on the operator of private kindergartens to directly deal with the affairs of budget, settlement of accounts and accounting belonging to the school expenses to the information processing unit designated by the Minister of Education, so the disposal nature is recognized. However, since the provisions of this case violate the Constitution or superior laws as follows, it is invalid or should be revoked

(a) Violation of the principle of statutory reservation;

Article 51 of the Private School Act applies mutatis mutandis only to a private school manager who is not a school juristic person, as well as to the contents of the Private School Act. Article 51 of the Private School Act applies mutatis mutandis only to the provisions of the Private School Act that are not premised on a school juristic person. Of the provisions applicable mutatis mutandis, there is no provision which provides for specific handling of budget, settlement of accounts, and accounting affairs of a private kindergarten operated in the form of a non-juristic person or delegates them to the subordinate statutes. The Rules issued by the Defendant pursuant to Article 33 of the Private School Act are applicable only to school juristic persons in principle, and Article 59 of the Rules of this case lists provisions that can be applied mutatis mutandis to private school managers who are not school juristic persons in the nature of Article 19-7 and Article 19-8 of the Early Childhood Education Act. Meanwhile, the provisions of this case are not listed. Accordingly, the Early Childhood Education Act does not provide for the accounting of a national or public kindergarten, but does not provide for private kindergartens

B. Property rights, freedom of occupation, general right of freedom of action, and tuition paid directly by the government and local governments to their parents to the kindergarten is owned by the Plaintiffs, which are private kindergarten operators, as long as paid in the private kindergarten. The instant provision restricts property rights, freedom of occupation, and general right of freedom of action, which are guaranteed by the Constitution, against private kindergarten operators, by forcing them to process all the budget, settlement, and accounting of the private kindergarten operators as designated by the Minister of Education, as well as the use of the revenue budget, which is owned by the private kindergarten operators.

Furthermore, it is difficult to find legitimacy for the purpose of compelling the application of the national management accounting system to the accounts of private kindergartens operated by private property. Even if the legislative purpose of the private kindergarten is recognized as the inventory of financial transparency, compelling the use of the national management accounting system is difficult to be considered in an appropriate way to achieve the purpose, compelling the use of the national management accounting system is excessively limited by compelling the use of the national management accounting system, and the private interest of private private school operators is much much more restricted compared to the public interest protected thereby, the instant provision violates the principle of excessive prohibition under the Constitution, thereby infringing on the basic rights of private kindergarten operators.

C. In the case of an educational foundation infringing on the right to equality, the individual property, corporate accounting, and school expense accounting of the founder is strictly divided, the operator does not need to bear unlimited liability, and the expenses for school operation are fully subsidized. On the other hand, in the case of a private kindergarten in non-corporate form, the personal property and school expense accounting are not strictly separated, and in the case of a private kindergarten, the individual property and school expense accounting belong to the individual, and in the case of a private kindergarten in which operating expenses fall short of operating expenses, the operator of the private kindergarten bears unlimited liability with respect to personal property, and the amount of subsidies in operating expenses is minor. Nevertheless, the instant provision infringes the right to equality under the Constitution by forcing the private kindergarten in non-corporate form to treat it as a school foundation to use the national management accounting system without reasonable grounds.

3. Whether the lawsuit of this case is legitimate

A. Defendant’s defense prior to the merits

Since the instant provision is only an abstract and general law and is not an act of law enforcement with regard to specific facts, it does not constitute a disposition subject to an appeal litigation. Therefore, the instant lawsuit is unlawful as it is not recognized as a subject of appeal.

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

C. Determination

1) An administrative disposition, which is the object of an appeal litigation, shall be an act of an administrative agency’s public law, which is an act of establishing a right or an obligation pursuant to an Act regarding a specific matter, and an act directly related to the rights and obligations of the people, such as creating other legal effects, etc. The act itself does not cause a direct change in the specific rights and obligations or legal relationships of the people, without mediating any other enforcement act, and the general and abstract laws and regulations, etc., which are not subject to the appeal litigation (see, e.g., Supreme Court Decisions 2005Du15168, Apr. 12, 2007; 201Du1603, Jun. 30, 2011)

2) Article 33 of the Private School Act provides that the Minister of Education shall determine the accounting rules of school juristic persons and other necessary matters concerning the budget or accounting of school juristic persons, and Article 51 provides that Article 33 shall apply mutatis mutandis only to the part concerning private schools established and operated by private school operators. In addition, Article 53-3 of the Rules of this case provides that the budget, settlement of accounts, and accounting of school expenses of schools at each level below high school level shall be handled as a data processing device designated by the Minister of Education, and the proviso provides

Meanwhile, Article 30(1) of the Early Childhood Education Act provides that where a kindergarten violates education-related Acts and subordinate statutes, Articles 53, 53-2, and 53-3 of the Road Traffic Act, or orders or kindergarten regulations thereunder, the head or the founder or operator of the kindergarten may order the correction or modification thereof for a fixed period of time. Paragraph (2) of the same Article provides that if a person ordered to make correction or modification under paragraph (1) fails to comply with such orders without justifiable cause within the designated period, measures such as reduction of the number of students, reduction of class, suspension of recruitment of young children, differential financial support to the relevant kindergarten, etc. Accordingly, Article 34-3 [Attachment Table 1-2] of the Enforcement Decree of the Early Childhood Education Act provides that Article 34-3 [Attachment Table 1-2] (d) of the Enforcement Decree of the Early Childhood Education Act does not process budget, settlement of accounts, and accounting affairs pertaining to school expenses accounts, and fails to comply with such orders within the designated period of time without justifiable cause, 15 percent reduction of the number shall be determined.

In full view of the contents of the above provisions, the provision of this case does not directly change the specific rights and duties or legal relations of the people, unless a separate execution action is mediated, such as guidance, supervisory agency's order to correct or change the violation, and reduction of the number of personnel following the non-performance of the above order, etc. Therefore, the provision of this case is merely a general and abstract law and cannot be seen as a disposition subject to appeal litigation. Accordingly, the defendant's defense prior to the merits is justified.

4. Conclusion

Therefore, since the plaintiffs' lawsuit is unlawful, it is decided to dismiss all of them. It is so decided as per Disposition.

Judges

The presiding judge, appointed judge and appointed judge

Judges Kim Gin-sung

Judges Chak-young

Note tin

1) However, excluding cases of foreign kindergartens under Article 16(1) of the Early Childhood Education Act which do not receive subsidies from the State or local governments (limited to personnel expenses and school operation expenses) under Article 43(1) of the Private School Act (Article 53-3(2) of the Rules of this case).