[1] Whether the organization and implementation of human rights education for up to two hours per semester falls under the affairs concerning the operation and guidance of elementary schools, middle schools, high schools, etc., as well as the affairs of local governments under Article 9 (2) 5 of the Local Autonomy Act (affirmative)

[2] Where the Minister of Education requested the superintendent of the competent office of education and the local council Gap to request the reconsideration of the proposed student human rights ordinance, but the Superintendent of the Office of Education rejected it and promulgated the student human rights ordinance, and filed a lawsuit seeking the exclusion of the validity of the proposed municipal ordinance, the case holding that the above municipal ordinance cannot be deemed as violating the fundamental rights of the people or the principle of statutory reservation required by the limitation of the rights of the residents, and that the contents are inconsistent with and

[3] The scope of the subject matter to be deliberated in a lawsuit to confirm the invalidity of the resolution of the proposed ordinances, and whether such a legal principle is equally applicable to a lawsuit to confirm the invalidity of the proposed ordinances, which the competent Minister directly files with the local council’s resolution pursuant to Article 172(7)

[1] In addition to the contents and structure of Articles 7 and 23 of the Elementary and Secondary Education Act, and II.4.A. (1) and 3.1.b. (15) of the Elementary and Secondary Education curriculum publicly notified by the Minister of Education, schools have the discretion to include the subjects of basic curriculum publicly notified by the Minister of Education, including those prescribed by the Presidential Decree, as subjects of curriculum operation. The superintendent of education can determine the standards and contents of curriculum in line with the actual conditions of the region within the scope of the curriculum determined by the Minister of Education as subjects in charge of education and arts of local governments, and can provide guidance on the operation of curriculum in schools within his/her jurisdiction. Determination of basic curriculum and education curriculum other than those determined by the Presidential Decree and guidance thereof are affairs that can be permitted to be consistent with the situation of each region and each region. In light of the fact that the establishment and implementation of human rights education for a maximum of two hours per semester is part of affairs concerning elementary school, middle school, and high school education in accordance with the examples of Article 9(2)5 of the Local Autonomy Act.

[2] Where the Minister of Education requested the superintendent of the competent office of education and the local council Gap to request the reconsideration of the draft of the Ordinance on Human Rights of Students, but the Superintendent of the Office of Education rejected the request and promulgated the Ordinance on Human Rights of Students, and brought a lawsuit seeking the exclusion of the validity of the Ordinance, the Court held that the above Ordinance cannot be viewed as a violation of the basic rights of the people or the principle of statutory reservation, and it cannot be viewed as a violation of the law and the principles of law, since the overall draft of the Constitution and the law only identifies the rights of students, thereby confirming that such rights are guaranteed to students, and it does not impose new rights which were not recognized by the law, or new obligations are not imposed on school operators, the heads of schools, teachers, etc., or new duties are not imposed on students, nor it is merely merely a regular school curriculum, the prohibition of compelling extracurricular and extra-hour education, and the implementation of student human rights education cannot be deemed that the human rights of the students should be respected in school curriculum, and thus it cannot be viewed as a new restriction of the rights of teachers or teachers.

[3] The subject matter of review in a lawsuit to confirm the invalidity of a resolution of the Ordinance shall be limited to those subject to review in the local council as an objection at the time the head of the local government requests a reconsideration. This legal doctrine is equally applied to the litigation to confirm invalidity of a resolution of the Ordinance, which is directly filed by the local council pursuant to Article 172(7) of the Local Autonomy Act by the competent Minister, and thus, the subject matter of review in the lawsuit to confirm invalidity of the resolution of the Ordinance is limited to those indicated as an objection from

[1] Article 7 of the Elementary and Secondary Education Act, Article 23 of the Elementary and Secondary Education Act, Article 9(2)5 of the Local Autonomy Act / [2] Article 12(1) and (2) of the Framework Act on Education, Article 8(2) of the Elementary and Secondary Education, Article 18-4 of the Elementary and Secondary Education Act, Article 9(1)7 of the Enforcement Decree of the Elementary and Secondary Education Act, Articles 12, 37(2), 75, and 95 of the Constitution / [3] Articles 107 and 172(7) of the Local Autonomy Act

[3] Supreme Court Decision 92Do31 delivered on July 28, 1992 (Gong1992Ha, 2575) Supreme Court Decision 2006Do52 delivered on December 13, 2007 (Gong2008Sang, 61)

(2) The Minister of Education (Attorney Choi Jong-hoon 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 Lee Jae-ju, Counsel for plaintiff)

April 9, 2015

The plaintiff's claim is dismissed. The plaintiff is assessed against the plaintiff, including the part arising from supplementary participation.

A decision made by the defendant on June 25, 2013 on the Ordinance on the Students' Human Rights of Jeollabuk-do has no effect.

1. Details and details of resolution on the Ordinance of the Students' Human Rights of Jeollabuk-do;

A. In full view of the purport of Gap evidence Nos. 1-1, 2, 3, Gap evidence Nos. 2, 3, 4, and Gap evidence Nos. 5-1 and 5-2, the following facts can be acknowledged.

(1) On June 25, 2013, the Defendant passed a resolution on the draft of the Ordinance on the Students’ Human Rights (hereinafter “instant Ordinance”) proposed by nine members affiliated therewith, and transferred the proposed Ordinance to the Intervenor joining the Defendant on June 26, 2013.

(2) On July 11, 2013, the Plaintiff requested the Intervenor to the Intervenor joining the Defendant to make a request for reconsideration on the grounds that the provision stipulating the student’s right to study (Article 5) as well as the provision stipulating the student’s right to learning among the proposed ordinances of this case were violated by statutes and violated the right to propose the proposed ordinances of the Intervenor. However, the Intervenor joining the Defendant did not comply with such request and promulgated the Ordinance on the Students’ Human Rights of the Jeollabuk-do on July 12,

(3) Accordingly, pursuant to Article 172(7) of the Local Autonomy Act which applies mutatis mutandis by Article 3 of the Local Education Autonomy Act, the Plaintiff directly filed the instant lawsuit seeking the exclusion of the validity of the resolution of the Ordinance of this case.

B. The purpose of the Ordinance is to ensure that the human rights of students can be realized in school curriculum and school life based on the Constitution of the Republic of Korea, the Convention on the Rights of the Child of the United Nations, the Framework Act on Education, the Elementary and Secondary Education (Article 1). The main contents of the Ordinance are the right of students to learn (Article 5), the right to regular and extracurricular education (Article 6), the right to freedom from violence (Article 9), the right to rest (Article 11), the right to realize personality (Article 12), the right to privacy (Article 13), the right to freedom of expression (Article 15), the right to participate in policy-making (Article 17), the right to welfare (Article 20), the right to provide meals (Article 21), the right to provide meals (Article 24), the right to provide students' human rights in school life and school life and school life), Article 30 of the Act on the Protection of Human Rights of Students and Human Rights of Students (Article 47), Article 30 of the Act, the obligation of the Council and its head.

2. Judgment on the main defense of this case

The Intervenor joining the Defendant asserts to the effect that the instant lawsuit is unlawful, since the Plaintiff’s exercise of the right to request the reconsideration and the right to file a lawsuit against the Ordinance on the Human Rights of Students of other local governments did not request the reconsideration of the Ordinance on the Bill of this case.

However, just because the Plaintiff did not request a request for reconsideration of a similar bill of the local council of other local governments, it cannot be deemed that the Plaintiff abused the Plaintiff’s supervisory authority or right to file a lawsuit against the resolution of the bill of this case concerning the bill of this case and the bill of this case. The allegation in this part cannot be accepted.

3. Judgment on the merits

A. As to whether it exceeded the limits of the power to enact municipal ordinances

(1) The Plaintiff asserts that since the compilation of the curriculum is the state affairs to be determined by the Presidential Decree pursuant to Article 23(3) of the Elementary and Secondary Education Act, Article 30(1) of the Ordinance of this case provides for the provision of human rights education for two hours a semester, it is unlawful to determine matters that cannot be subject to the enactment of the Ordinance.

(2) According to the Elementary and Secondary Education Act, the Minister of Education shall determine “basic matters” concerning the standards and contents of the curriculum to be operated by a school, and the Superintendent of an Office of Education may determine the standards and details that conform to the regional conditions within the scope of the curriculum determined by the Minister of Education, and the curriculum (department) of a school shall be determined by Presidential Decree (Article 23). In addition, according to the Elementary and Secondary Education curriculum publicly notified by the Minister of Education pursuant to Article 23(2) of the Elementary and Secondary Education Act, schools may organize and operate school curricula that fit the school conditions based on the foregoing curriculum (Article 2.4.1 (a) of the above public announcement). In preparation for the establishment and operation of curriculum not presented in the curriculum, the Office of Education may present relevant guidelines to schools and support schools to take necessary prior procedures (Article 7(2) of the Elementary and Secondary Education Act). Meanwhile, the Superintendent of an Office of Education may provide guidance on the operation of curricula, teaching methods, etc. for schools within his/her jurisdiction (Article 7(1) of the Elementary and Secondary Education Act).

In addition to the contents and structure of the relevant Acts and subordinate statutes, the following circumstances are revealed, namely, schools have the discretion to include the subjects other than those determined by the Presidential Decree, which constitute the basic curriculum publicly announced by the Minister of Education, including the subjects determined by the Presidential Decree as the subjects operating the curriculum. The superintendent of education, as the subjects in charge of the affairs concerning education and arts of local governments, can establish the standards and contents of curriculum meeting the regional conditions within the scope of the curriculum determined by the Minister of Education, not only can it establish the curriculum, but also can provide guidance on the operation of the curriculum within his/her jurisdiction, determination of the basic curriculum and the curriculum other than those determined by the Presidential Decree as determined by the Minister of Education, and its guidance are not affairs to be regulated nationwide, but also affairs to be permitted to regulate the actual conditions of each region and each school. In light of the above, the organization and implementation of human rights education up to two hours each semester is an example of the affairs of local governments under Article 9 (2) 5 of the Local Autonomy Act.

(3) Therefore, the provision of the Ordinance of this case (Article 30(1)) provides matters within the scope of the legislative power of the Municipal Ordinance, so the plaintiff's above assertion is without merit.

B. As to whether the Ordinance of this case violates the principle of statutory reservation and the principle of legal superiority

(1) The Plaintiff asserts that the provisions of the Ordinance of this case, without statutory delegation, limits the teachers’ right to teach (Article 5, 6, 11, 12, 13, 15, 17, 18, 20, 21, 24, and 27), and that it violates the principle of statutory reservation (Articles 12(3), 13(4), and 17(3) by stipulating that the rights of students may be restricted pursuant to school regulations other than the Act (Articles 12(3), 13(4), and 17(3). It infringes on the constitutional provisions on the autonomy and specialization of education and the freedom of teachers derived from the relevant provisions of the Framework Act on Education and the Elementary and Secondary Education, and infringes on discretion on the autonomy and guidance of students given to schools through the enactment of school regulations (Article 2 subparag. 2, 9, 11, 12, 13, and 17).

(2) (A) Article 12(1) of the Framework Act on Education provides that “The fundamental human rights of learners, including students, shall be respected and protected in the course of school education or social education.” Article 12(2) provides that “The content of education, educational methods, teaching materials and educational facilities shall respect the personality of the learners and put emphasis on their identity so that the abilities of the learners can be displayed to the greatest extent.” In addition, Article 18-4 of the Elementary and Secondary Education Act provides that “the founders and managers of schools and the heads of schools shall guarantee the human rights of students as stipulated in the Constitution and the International Convention on Human Rights.”

(B) Meanwhile, Article 1 provides that “The purpose of this Ordinance is to ensure that students’ human rights can be realized in school curriculum and school life based on the Constitution of the Republic of Korea, the Convention on the Rights of the United Nations, the Framework Act on Education, and the Elementary and Secondary Education.” Furthermore, the specific content of the Ordinance provides that “The right not to be infringed upon in school curriculum and school life (Article 5), the right to freely select and learn extracurricular activities without justifiable cause (Article 6), the right to be free from all physical and verbal violence (Article 9), such as bullying, classical harassment, sexual violence, etc. (Article 11), the right to take appropriate rest (Article 1), the right to clothes, the length, pattern, color, etc. of two children, and the right to freely express or delegate the right to freedom of school life (Article 12) in accordance with the Constitution, or the right to freely express or delegate the right to freedom and freedom of school life in accordance with Article 17(2) of the Elementary and Secondary Education Act to ensure the formation and development of healthy children (Article 17).

(C) In light of such relevant Acts and subordinate statutes and the contents of the Ordinance, the Ordinance of this case merely lists the rights of students recognized by the relevant Acts and subordinate statutes within the framework of the Constitution and the law and confirms that such rights are guaranteed to students, and does not impose new obligations on students, or on school operators, school principals, teachers, etc., for the purpose of realizing the protection of students’ human rights in school life and school curriculum.

In addition, in light of the constitutional provisions on the autonomy, expertise, and political neutrality of education, the selection of the curriculum and method of education for the students in the school life governed by the Ordinance of this case shall not be subject to the power guidance and supervision of the superintendent of education, etc., but shall be subject to non-powerd guidance such as advice and recommendation, etc., and the Ordinance of this case does not have any sanctions other than the recommendation of correction of the Human Rights Protection Officer, it shall not be deemed that the regulations such as prohibition of regular and extracurricular education, prohibition of coercion of extracurricular education, provision of student human rights education, etc. emphasizing that the human rights of students should be respected in the school curriculum and recommending the head of the school or teachers, who are the subject of education, to take necessary measures therefor.

(D) As such, insofar as the provisions of the Ordinance of this case merely confirm or specify the rights of students recognized by the Constitution and relevant laws and regulations and recommends necessary measures therefor, such provisions cannot be deemed as a new restriction on the rights of teachers or students. Thus, it cannot be deemed as a violation of the principle of statutory reservation required for the restriction on fundamental rights of the people or the rights of residents, and its contents are inconsistent with the provisions of the Act and subordinate statutes, and thus, cannot be deemed as being contrary to

(E) Furthermore, even if the contents of the Ordinance of this case are specifically examined as follows, such contents cannot be deemed to be in violation of the Framework Act on Education and the laws and regulations related to the Elementary and Secondary Education.

(1) Part concerning the definition of students

Article 2 subparag. 2 of the Ordinance of this case includes not only “persons attending a school or kindergarten,” but also “persons disputing whether to enter or leave a school or kindergarten” in the definition of students. However, the Framework Act on Education and the Elementary and Secondary Education do not explicitly exclude persons who dispute whether to enter or leave a school or not within the scope of students, and it cannot be deemed that the relevant Act and subordinate statutes actively prohibit the protection of the right of learning of those who dispute over whether to enter or leave a school, other than those who attend a school, and therefore, such provision of the Ordinance cannot be deemed inconsistent with the relevant Act and subordinate statutes.

(2) Part concerning land for a physical fine:

The main sentence of Article 18 (1) of the Elementary and Secondary Education Act provides that "the head of a school may discipline or instruct students by other means, as prescribed by Acts and subordinate statutes or school regulations, if necessary for education." Article 31 (8) of the Enforcement Decree of the same Act provides that "the head of a school shall provide guidance pursuant to the main sentence of Article 18 (1) of the Act by methods such as discipline and discipline, as prescribed by school regulations, and shall not use methods of causing physical harm to students by using tools, body parts, etc."

However, Article 9(2) of the Ordinance provides that “The physical punishment in school curriculum shall be prohibited” without specifying the definition and scope of physical punishment. Thus, this Ordinance is interpreted to the effect that the provision of the Ordinance prohibits physical punishment for students within the scope of Article 18(1) of the Elementary and Secondary Education Act and Article 31(8) of the Enforcement Decree of the same Act. Therefore, it is difficult to see that the provision of this Ordinance also conflicts with relevant Acts and subordinate statutes.

(3) Restrictions on the regulation on uniforms and heading, restrictions on inspection and seizure of belongings, and restrictions on the organization of regular curriculum and extracurricular educational activities.

Article 12 of the Ordinance of this case specifically confirms the students' rights in school life, derived from the free expression of personality guaranteed under Articles 10, 17, and 21 of the Constitution, the restriction on uniform and hair under Article 12, the restriction on inspection and seizure of personal belongings under Article 13, and the restriction on assembly and expression under Article 17, and the restriction on the freedom of assembly and expression under Article 17, of the same Act, and the right to students in school life, derived from freedom of assembly and expression, and the right to students’ right to students can be restricted pursuant to school regulations if there are justifiable grounds for education purposes or necessary to guarantee students’ right to learning. However, this does not conform to the Enforcement Decree of the Elementary and Secondary Education Act and Article 8 of the Elementary and Secondary Education Act and Article 9(1) of the Enforcement Decree of the same Act, which provide for "the matters concerning school life of students, such as the use of uniforms, uniforms, etc., inspection of electronic devices necessary for educational purposes, the use of cellular phone, and the maintenance of order in school education and research activities."

Therefore, it is difficult to view that the provisions of this Ordinance infringe on the autonomy given to schools through the establishment of school regulations and the guidance of students by teachers in violation of laws and regulations.

In addition, Article 11 of the Ordinance of this case provides that the restriction on the compilation of extra-hour extra-hour extra-hour extra-hour extra-hour extra-hour extra-level extra-level extra-level extra-level extra-level extra-level extra-level extra-level extra-level extra-level extra

(3) Therefore, we cannot accept the Plaintiff’s assertion that the provisions of the Ordinance of this case violate the principle of statutory reservation or the principle of legal superiority.

C. As to whether the proposed bill by the head of a local government is unlawful by infringing the right to proposal

(1) The Plaintiff asserts that the part concerning the Human Rights Council for Students, the Student Human Rights Education Center, and the Student Human Rights Protection Center among the Ordinance of this case is a provision concerning the establishment and operation of an administrative body or advisory body belonging to the executive body, and that the Ordinance of this case proposed by a member of the local council infringes on the inherent authority concerning the establishment of an administrative body, etc. of the Superintendent of the Office

(2) (A) The Local Autonomy Act provides that the head of a local government shall have the unique authority to establish an administrative body necessary to manage and execute the affairs of the local government as the representative of the local government and the affairs delegated by the Act and subordinate statutes, and shall have the right to propose an ordinance to this end. Thus, the local council shall propose and resolve an ordinance on the establishment of an administrative agency or administrative body as it is, in principle, actively intervene in advance by the local council in the exercise of the unique authority of the head of the local government, and shall not be permitted in violation of relevant Acts and subordinate statutes (see, e.g., Supreme Court Decisions 2005Do48, Aug. 19, 2005; 2009Do53, Sept. 24, 2009).

(B) However, in full view of the evidence and the purport of the entire argument as seen earlier, ① the Intervenor’s Intervenor proposed the Ordinance on the Students’ Human Rights, including the establishment of the Students’ Human Rights Commission and the Student Human Rights Protection Officer, etc., on two occasions on October 5, 2011 and September 28, 2012, and the Ordinance was rejected at the Defendant’s Board of Education and the plenary session or plenary session. ② The Defendant’s motion for reconsideration of the Ordinance on July 11, 2013, after the motion was passed at the plenary session and was transferred to the Defendant at the plenary session, requested the Defendant to request reconsideration of the Ordinance on the instant case’s motion for reconsideration. However, the Defendant refused the request for reconsideration and promulgated the Ordinance on the Students’ Human Rights to Students’s Human Rights on July 12, 2013, and ③ the Plaintiff directly filed the instant lawsuit seeking to exclude the validity of the Resolution on the instant Ordinance, and the Defendant’s motion for reconsideration of the Plaintiff’s motion after filing the Plaintiff’s motion for intervention.

(C) In light of these facts, even if the Ordinance of this case, including the establishment of an administrative body and advisory body, was proposed by a member of the local council, the Intervenor joining the Defendant, who has the authority to establish an administrative body, clearly revealed the circumstances with which he/she consented to the contents of the Ordinance. Therefore, even if the intent of the head of the local government is consistent with the intent of the local council as to the enactment of the Ordinance, it cannot be deemed that the Ordinance of this case violated the Intervenor’s right to propose the establishment of administrative body or the right to propose the Ordinance.

D. The Plaintiff asserts the illegality and invalidity of Article 2 subparag. 1, Articles 4, 7, 8, 10, 14, 16, 19, 22, 23, 25, 26, and 41 of the Ordinance of this case, which was not pointed out as a matter of objection at the time of the request for reconsideration.

However, in a lawsuit to confirm the invalidity of a resolution on the re-resolution of an ordinance, the subject of review is limited to the subject of review by the head of a local government as an objection at the time of the request for reconsideration to the local council (see, e.g., Supreme Court Decisions 92Da31, Jul. 28, 1992; 2006Da52, Dec. 13, 2007). This legal doctrine applies equally to a lawsuit to confirm the invalidity of a resolution on the re-resolution of an ordinance directly filed by the local council pursuant to Article 172(7) of the Local Autonomy Act, so the subject of review by the competent Minister is limited to the subject of review by the competent Minister as an objection to the request for reconsideration.

The above provisions of the Ordinance of this case, which the plaintiff asserts new illegality and invalidity in the lawsuit of this case, do not constitute the subject of the examination of this case. Thus, without examining any further, we cannot accept this part of the plaintiff's assertion.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as without merit, and the costs of the lawsuit are assessed against the plaintiff including the part resulting from the participation in the lawsuit. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Chang-suk (Presiding Justice)