2012u2. Revocation of ex officio revocation

Gangwon-do Superintendent of Education

The Minister of Education

November 14, 2013

February 27, 2014

The instant lawsuit is dismissed.

Litigation Costs shall be borne by the plaintiff.

The defendant's school life records against the plaintiff on August 27, 2012 against the aggressor student in school violence.

Re-related ex officio revocation disposition shall be revoked.

1. The circumstances and the summary of the ex officio revocation disposition of this case

The following facts may be acknowledged, either in dispute between the parties or in full view of the respective descriptions of Gap evidence 1 to 7, Eul evidence 2-1, 2, Eul evidence 5-3 and 4, and the whole purport of pleadings.

(a) On January 27, 2012, the Defendant’s amendment 1 of the Defendant’s Guidelines for the Preparation and Management of School Records) measures against aggressor students in school violence at the Autonomous Committee on Countermeasures against School Violence as provided for in each subparagraph of Article 17(1) of the Act on the Prevention of and Countermeasures against School Violence;

The Ministry of Education, Science and Technology amended the Guidelines for the Preparation and Management of School Records by Directive 239 to make records of the matters available as life guidance and entrance data to higher schools, and the main contents are as follows. (1) The entry of school records into the column of "special engineer" shall include transfer, expulsion from school, taking special education or psychological treatment, suspension of attendance for not more than ten days in the column of "special engineer status", suspension of attendance, behavior characteristics and comprehensive opinion, prohibition of contact, intimidation and retaliation, school service, class replacement, and class replacement:

(B) Measures to be taken against aggressor students entered in school life records shall be preserved for five years after graduation for elementary schools and middle schools, and high schools shall be preserved for ten years.

2) On June 29, 2012, the Defendant re-amended the Act on the Preparation and Management of School Life Records by the Ministry of Education, Science and Technology Directive No. 257, and revised the preservation period of school life records from 10 years after graduation to 5 years after graduation, as in the case of high schools.

B. On July 9, 2012, when the Plaintiff’s reserved land in the instant case, the National Human Rights Commission held the 14th Committee of the Republic of Korea on July 2012, 2012 and made a comprehensive policy recommendation and decision to create a human rights-friendly school culture. The content should be revised to ensure that school violence records are not different human rights violations, such as the introduction of the deletion review system or the interim deletion system prior to graduation with respect to school violence records.

Accordingly, on August 13, 2012, the Plaintiff kept the records of school violence prevention in schools of various levels until the future policies of the Ministry of Education, Science and Technology and the Gangwon-do Office of Education have been established, and sent a official door to the main time. "(hereinafter referred to as "land reserved in this case")."

C. On August 23, 2012, the Defendant issued a corrective order to the Plaintiff (1) to revoke the designation of the reserved land in the student registry located in the school at his/her office of education, and (2) to provide guidance to the school and the Office of Education by August 24, 2012 to include the aggressor students in the student registry pursuant to statutes, and to submit it to the Ministry of Education, Science and Technology by August 27, 2012 (hereinafter “instant corrective order”).

As the Plaintiff did not comply with the instant corrective order, on August 27, 2012, the Defendant revoked ex officio the Plaintiff’s land in the instant reserved area on the ground that the principal’s case should be prepared and managed in accordance with Article 25 of the Elementary and Secondary Education Act, and that it does not arbitrarily be determined by the Superintendent of an Office of Education (hereinafter “instant disposition of revocation ex officio”).

2. Whether the lawsuit of this case is lawful

A. Article 169(2) of the Local Education Autonomy Act (amended by Act No. 11690, Mar. 23, 2013) that is applicable mutatis mutandis under Article 3 of the former Local Education Autonomy Act is limited to the cancellation or suspension of orders or dispositions concerning autonomous affairs, and thus, the subject of a lawsuit is first considered as to whether guidance and supervision on the preparation of school life records by the superintendent of education is autonomous affairs or the delegated affairs by institutions.

1) In order to determine whether a legal affair is autonomous affairs or an agency’s delegated affairs, the form and purport of the provision of the relevant Act and subordinate statutes shall be first considered in order to determine whether such affairs are autonomous affairs or an agency’s delegated affairs. However, other factors such as whether the nature of the affairs is required to be dealt with nationwide, the burden of expenses related thereto, and who is the subject of the ultimate responsibility (see, e.g., Supreme Court Decisions 2002Du10483, Apr. 22, 2003; 201Du566, May 23, 2013).

2) Article 17 of the Framework Act on Education does not provide clear criteria for the State affairs and the affairs of local governments among the affairs related to guidance and supervision of schools and social educational institutions by providing that “the State and local governments shall guide and supervise schools and social educational institutions.” In addition, Article 6 of the former Elementary and Secondary Education Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same shall apply) enacted pursuant to Article 9(4) of the Framework Act on Education provides that “National schools shall be subject to guidance and supervision by the Minister of Education, Science and Technology, and public and private schools shall be subject to guidance and supervision by the superintendent of education. It provides that the superintendent of education shall have the authority to guide and supervise public and private schools.

3) According to Article 25 of the former Elementary and Secondary Education Act, the head of a school shall comprehensively observe and evaluate the academic achievement degree, personality, etc. of students to be used for the guidance of students and the selection of students at higher level, and prepare and manage data, such as personal information, school register, attendance status, qualification certificate and acquisition status, academic development status, behavior characteristics and comprehensive opinion, and other matters prescribed by Ordinance of the Ministry of Education, Science and Technology to the extent necessary for educational purpose, according to the standards prescribed by Ordinance of the Ministry of Education, Science and Technology (Paragraph 1), and the head of a school shall prepare and manage such data through an educational information system (Paragraph 2), and the head of a school shall deliver such data to the head of the school to which the student transferred if the student is transferred (Paragraph 3).

In addition, according to Article 47(2) of the former Elementary and Secondary Education Act and Article 82 of the former Enforcement Decree of the Elementary and Secondary Education Act (amended by Presidential Decree No. 24423, Mar. 23, 2013), the records of school life of middle schools are reflected in the entrance screening of high school electricity and second group of schools, and Article 34(2) of the former Higher Education Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same) and Article 35 of the former Enforcement Decree of the Higher Education Act (amended by Presidential Decree No. 24423, Mar. 23, 2013). The head of a university may utilize the records of school life of high school as admission screening data to select new students.

According to the provisions of the former Elementary and Secondary Education Act, the former Higher Education Act, and the former Enforcement Decree thereof, where a student moves between Sis/Dos or between national schools and public and private schools, the school life records need to be systematically and uniformly managed, and where a middle student enters a high school located in another Si/Do, the school life records are reflected in high school entrance screening, and high school life records are used as entrance screening materials for universities under the defendant's instruction and supervision. Thus, it seems that the affairs concerning the preparation of school life records conducted by the head of a school need to be uniformly handled for the benefit of the whole of the people. Accordingly, it is reasonable to interpret that the affairs concerning the guidance and supervision of the supervisory office on the preparation of school life records need to be uniformly handled for the benefit of the people as one of the affairs concerning the preparation of school life records conducted by the head of a public and private school belongs to the Superintendent of the Provincial Office of Education, which is the State/public guidance and supervision of the matters delegated to him/her.

B. Thus, the instant ex officio revocation disposition is deemed to be conducted with respect to the delegated affairs of the agency, and thus does not constitute cancellation or suspension of an order or disposition pertaining to autonomous affairs, and thus does not constitute a subject to which a lawsuit under Article 169(2) of the Local Autonomy Act may be filed. Therefore, the instant lawsuit is unlawful.

3. Conclusion

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

Justices Kim Yong-deok

Justices Shin Young-chul

Justices Lee Sang-hoon

Justices Kim So-young