[1] Persons subject to compulsory education for middle schools under the former Education Act and the former Act on the Implementation of compulsory education for middle schools

[2] The case holding that where a middle school was a compulsory education area and was excluded from an implementation area due to the change of administrative district following the reorganization of administrative district, a child living in a middle school who did not have the age for entering middle school at the time of the change

[1] Unlike compulsory education for elementary school education guaranteed by the Constitution, the issue of whether a person subject to compulsory education should be conducted as compulsory education at any time within a certain scope is a matter belonging to the freedom of legislators’ formation, and only when the National Assembly determines the legislative policy and specifically provides for it as a constitutional right. Articles 8 and 8-2 of the former Education Act (repealed by Act No. 5437 of Dec. 13, 1997), Articles 8 and 8-2 of the former Education Act (repealed by Presidential Decree No. 15664 of Feb. 24, 1998), and Article 2(1) of the former Regulations on the Implementation of Compulsory Education for Middle Schools (repealed by Presidential Decree No. 15664 of Feb. 24, 1998) stipulate that a person subject to compulsory education for middle school residing in a military area, island or remote area as a school district. In principle, a person subject to middle school age as defined in the above provision refers to a person who has been subject to compulsory education within three years from the elementary school from the beginning of the school.

[2] The case holding that where a middle school was a compulsory education area and was excluded from the implementation area due to the change of administrative district following the reorganization of administrative district, a child living in a middle school who did not have the age for entering middle school at the time of the change of administrative

[1] Articles 8 and 8-2 of the former Education Act (repealed by Act No. 5437 of Dec. 13, 1997) and Article 2 (see current Article 23 of the Enforcement Decree of the Elementary and Secondary Education Act) of the former Regulations on the Implementation of Compulsory Education at Middle Schools (repealed by Presidential Decree No. 15664 of Feb. 24, 1998) / [2] Articles 8 (see current Article 8 of the Framework Act on Education), 8-2 of the former Education Act (repealed by Act No. 5437 of Dec. 13, 1997), Article 2 (see current Article 23 of the Enforcement Decree of the Elementary and Secondary Education Act) of the former Regulations on the Implementation of Compulsory Education at Middle Schools (repealed by Presidential Decree No. 15664 of Feb. 24, 1998)

[Defendant-Appellant] Plaintiff (Attorney Jeon Soo-soo et al., Counsel for defendant-appellant)

Republic of Korea and one other (Attorney Park Jong-soo, Counsel for the plaintiff-appellant)

January 26, 2006

1. The plaintiff (appointed party)'s claim is all dismissed.

2. The litigation costs shall be borne by the plaintiff (appointed party).

The Defendants jointly and severally pay to the Plaintiff (designated parties; hereinafter “Plaintiffs”) and the designated parties indicated in the separate sheet 20% interest per annum on each of the money indicated in the separate sheet e.g., the amount of the educational expenses paid in the separate sheet e., and each of the said money.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of the pleadings in each entry of evidence Nos. 1-1 through 3-2 of the evidence No. 1-2.

A. The designated parties except the Plaintiff and the Plaintiff (hereinafter collectively referred to as “Plaintiffs, etc.”) paid each amount indicated in the column for the payment of attached educational expenses from 2000 to 2003, as parents of students who were enrolled in the Mandong Middle School located in Seo-gu, Incheon, Seo-gu, Incheon, and Mansan Middle School located in Seo-dong, Seo-gu, Incheon, and their children’s admission fees, tuition fees, and textbook fees.

B. The above areas where the Kancho middle school and the Yan Seo middle school belong were originally located in the examination area of Kimpo-gun in Gyeonggi-do, and were incorporated into the jurisdiction of the Incheon Seo-gu, Seoul Special Metropolitan City, Metropolitan City, and Do pursuant to Article 10 of the Act on the Establishment of nine autonomous Gus, including Gwangjin-gu, Seoul Special Metropolitan City, which was enforced on March 1, 1995, and the Change of Jurisdiction between Seoul and Do (Act No. 4802, Dec. 22, 199

C. From March 1, 1992, Article 2 of the former Regulations on the Implementation of Compulsory Education for Middle Schools amended by Presidential Decree No. 13577, Feb. 1, 1992; however, the Defendant Incheon Metropolitan City, by implementing Article 4802 of the above Act, determined that the above area was incorporated into the Seo-gu Incheon Metropolitan City and excluded from the area of compulsory education for middle schools, and that the above area was excluded from the area of compulsory education for middle schools from March 1, 1996.

2. Plaintiff’s assertion and judgment thereon

A. The plaintiff's assertion

Since the right to receive the compulsory education of a middle school is the constitutional right, and the compulsory education of a middle school is in the process of expanding the implementation area in sequential order in consideration of the state's finances, it is unreasonable to deprive the State of the right to receive the compulsory education of a middle school due to the change of administrative district, since March 1, 192, since the Gyeonggi-do Kimpo-gun located in the district where the compulsory education of a middle school was conducted, the children of a middle school shall be deemed to have already acquired the right to receive the compulsory education of a middle school, and since this does not result in the State's additional financial burden, it is unreasonable to deprive the children of the right to receive the compulsory education of a middle school due to the change of administrative district. In addition, there is a reasonable expectation that the children of a middle school who did not have the age of entering middle school will be the persons subject to the compulsory education of a middle school, and

Therefore, even if the above area was incorporated into the Seo-gu Incheon Metropolitan City, collecting tuition fees, etc. by excluding the above area subject to compulsory education for middle schools due to a mistake in statutory construction, the Defendants acquired financial benefits without any legal grounds and thereby incurred damage equivalent to the same amount to the Plaintiff, etc... Therefore, the Defendants should pay the money recorded in the column for the payment amount of education expenses in the attached Table as well as damages for delay on each of the above money due to unjust enrichment return.

(b) Markets:

Unlike the compulsory education for the primary education guaranteed under the Constitution, the matter of which procedure should be conducted as compulsory education at any time within a certain scope is the matter belonging to the freedom to form legislators, and is embodied as the constitutional right only when the National Assembly determines the legislative policy and specifically prescribes the matter by law. Accordingly, Articles 8 and 8-2 of the former Education Act (repealed by Act No. 5437 of Dec. 13, 1997) provide that the compulsory education for the secondary education for three years shall be conducted in order under the conditions as prescribed by the Presidential Decree. Article 2(1) of the former Regulations on the Implementation of the Compulsory Education for Middle Schools ( repealed by Presidential Decree No. 1564 of Feb. 24, 1998 and replaced by the Enforcement Decree of the Elementary and Secondary Education Act from March 1, 1998) provides that the subject of compulsory education shall be a middle school residing in the administrative district of the Gun area and in the area of the Si/Gun area under the provisions of the attached Table.

In principle, a person subject to middle school age under the above provision refers to a person who is within three years from the beginning of the school year following the school year in which he graduated from an elementary school, and Article 2(2) of the above provision supports that a person who is subject to compulsory education at a middle school under Article 2(1) of the above provision shall not be affected by the change of administrative district or the change of the school district of the elementary school. As seen above, inasmuch as compulsory education for secondary school age is regarded as a right to be embodied only by the law, unlike the plaintiff's assertion, it cannot be interpreted extensively as a concept that covers all children of elementary school below elementary school residing in the area where compulsory education for middle school was conducted. Thus, the plaintiff's assertion on this premise is without merit.

Meanwhile, the Plaintiff still remains in the area of compulsory education of middle school since it was incorporated into the Gun area as Incheon Metropolitan City by the enforcement of Article 4802 of the above Act, but the above examination area was excluded from the compulsory education of middle school since it was merely a difference in the name of the administrative district and thus there is no reasonable ground. Thus, the Plaintiff asserted that compulsory education of secondary education is illegal against the principle of equality under the Constitution since it was merely an illegal act contrary to the principle of equality under the law since it was merely a difference in the name of the administrative district of Incheon Seo-gu. Thus, the compulsory education of secondary education is a matter of legislative policy in consideration of the state's financial situation and the citizen's income level, which is difficult to receive education benefits due to geographical conditions, and its implementation area has been gradually expanded from the above examination area of middle school since the above examination area was relatively difficult to receive education benefits due to geographical conditions. However, it is difficult to view that the above area was a middle school education area of Jinjin-gun and the above reinforcement military area as a part of the above middle school since it was conducted as a middle school before this day.

3. Conclusion

If so, the plaintiff's claim of this case is without merit, and it is dismissed. It is so decided as per Disposition.

Judges Seo Chang-won (Presiding Judge)