207 Gaz. 361392 Undue profit

Attached List 1. (List of Plaintiffs)

[Judgment of the court below]

[Defendant-Appellant]

1. ○○○ Civil Country;

Representative of law and Kim ○○

2. ○○ Special Metropolitan City.

Representative of the Office of Education Do Governor

3. Ratu; and

Representatives of Office of Education Kim○

4. ○○buk-do;

Representative Superintendent of the Office of Education ○

5. ○ Metropolitan City.

Representative ○○○

6. ○○buk-do;

Representative Maximum○○○○

[Plaintiff-Appellee] Plaintiff 1 and 2 others

[Defendant-Appellee] Plaintiff 1 and 10 others

May 20, 2009

June 17, 2009

1. The plaintiffs' claims against the defendants are all dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Defendant ○○ Civil State or A. Defendant ○○ Special Metropolitan City is located in attached Table 1. Plaintiff 1 as indicated in attached Table 1.

B. Defendant ○○do 17 to 52 listed in the same list, and C. Defendant ○○buk-do ;

The Do shall set forth in the same list to Plaintiffs 53 through 98, and d. Defendant ○○ Metropolitan City shall set forth in the same list.

J. 99 to 107, E. Defendant ○buk-do is the same as Plaintiff 108 to 113 listed in the same list.

section 1 of the Schedule “ claim amount” and each of the amounts is described on the date on which each “final date of payment” is described.

Until the ruling of this case is rendered, 5% per annum, and 20% per annum from the next day to the day of full payment.

L. L.D. pay the amount of money calculated at a rate.

1. Basic facts

The following facts are not disputed between the parties, or may be recognized by considering the whole purport of the pleadings as a whole in each entry of Gap evidence 1 and Gap evidence 2 (including each number).

A. The plaintiffs paid the "school operation support fund" to the middle school in which their children attended a middle school or graduated from a middle school. The names of the plaintiffs' children, the school to which they belong, the year of entrance, the total amount of the school operation support fund paid by the plaintiffs, and the date of final payment are listed in the attached Table 1.

B. Of the provisions of the Elementary and Secondary Education Act, the provisions on the "school operation support fund" paid by the plaintiffs are as follows.

Article 30-2 (Establishment of School Accounting)

(1) School accounting shall be established in national or public elementary schools, middle schools, high schools and special schools.

(2) Revenues of the school accounting shall be as follows:

1. Money transferred from the general accounts of the State or special accounts of local governments;

2. School operation support payments of subparagraph 7 of Article 32;

3. Payments transferred from the school development fund under Article 33;

4. Expenses borne by parents after the deliberation of school operational committee, in addition to tuition fees, other money due and school operation support funds referred to in Article 10;

5. Subsidies and subsidies from the State or local governments;

7. Amount carried forward;

8. Proceeds from the sale of goods 9. Other revenues.

(3) The school accounting's expenditures shall be all expenses incurred in operating any school and in establishing school facilities, etc.

(4) The school accounting may appropriate a considerable amount as a reserve in the expenditure budget to cover unpredictable expenditures not included in the budget or expenditures exceeding the budget.

(5) Matters necessary for the establishment of school accounting shall be prescribed by Ordinance of the Ministry of Education, Science and Technology for national schools and by the Educational Rules of the relevant City/Do for public schools.

Article 31 (Establishment of School Governance Committee)

(1) National, public and private elementary schools, middle schools, high schools and special schools shall organize and operate School Governance Committees in order to enhance the autonomy of operating schools and to provide various education meeting the circumstances and characteristics of a region in a creative manner.

(2) School Governance Committees to be established at national and public schools shall be comprised of teachers' representatives, parents' representatives, and community personnel of the relevant school.

(3) The fixed number of members of a school steering committee established in a national, public, or private school shall be prescribed by Presidential Decree, in consideration of the size, etc. of the school between five and fifteen.

Article 32 (Functions)

(1) A school steering committee to be established at a national or public school shall deliberate on the following matters:

1. Matters relating to the formulation and amendment of the school charter and regulations;

2. Matters concerning budget bills and settlement of accounts of schools;

3. Matters regarding the operation of school curricula;

4. Matters concerning the selection of textbooks and educational materials;

4-2. Matters concerning expenses borne by parents, such as school uniforms and gymnasium graduates;

5. Matters concerning educational and training activities after the end of regular study hours or during a vacation period;

6. Matters regarding the recommendation of invited teachers under Article 31 (2) of the Public Educational Officials Act;

7. Matters concerning the raising, operation and use of the school operation support fund;

8. Matters concerning school meal services;

9. Matters concerning recommendation of the heads of schools from among special screening for university admission;

10. Matters concerning the composition and operation of school sports teams;

11. Matters relating to proposals and recommendations with respect to school operation;

12. Other matters prescribed by Presidential Decree and Municipal Ordinance of a Si/Do.

(2) The head of a private school shall consult with the School Governance Committee on the matters of subparagraphs of paragraph (1) (excluding the matters of subparagraph 6): Provided, That subparagraph 1 shall be limited to cases where a school juristic person makes a request for consultation with regard to matters.

(3) A school steering committee established in a national, public, or private school shall deliberate and resolve on matters concerning the creation, operation, and use of the school development fund.

2. Determination as to the plaintiffs' claims

A. The plaintiffs' assertion

Article 8 of the Framework Act on Education provides for three-year secondary education as compulsory education, and in this regard, Article 12(4) of the Elementary and Secondary Education Act provides that persons who receive compulsory education may not receive tuition fees. However, as seen earlier, the Defendants compulsorily collected approximately KRW 200,000 per child from the Plaintiffs on the pretext of school operation support expenses, and used them as personnel expenses for middle school teachers and staff, school facilities installation, maintenance, and repair expenses of middle school attended by their children.

In light of these circumstances, school operation support funds collected by the Defendants from the Plaintiffs are in violation of Article 8 of the Framework Act on Education and Article 12(4) of the Elementary and Secondary Education, which provide for the principle of compulsory education and tuition fees, and there is lack of legitimate legal basis (in fact, it is only a tuition regardless of its name). Therefore, the Defendants are obligated to refund the amount equivalent to the school operation support funds paid by the Plaintiffs.

B. Determination

(1) Determination as to the claim against Defendant ○○ Civil State

First, it is difficult to recognize that Defendant ○○ country obtained any property benefits in relation to the payment of the Plaintiffs’ school operation support funds, on the other hand, there is no evidence that the Plaintiffs’ children attended or attended a public or private school, while there is no evidence to acknowledge that the above children were or were attending the national school.

In addition, the plaintiffs' above assertion against the defendant ○○ Civil State is without merit without examining the remainder of the argument.

(2) Of the plaintiffs, the school operation support fund was paid to a private school (the plaintiffs' claims by 4, 17, 106, 109, 113, and hereinafter referred to as "private school's parents"), the claims by 55 against ○○○○, the claims by 58 against her children, the claims by 59 against her children, the claims by 67, 68, 73, 74, 75, 78, 78, 79, 87, 90, 98, 106, 109, 113, and hereinafter referred to as "private school's parents"), and the claims by her parents against her children except for the defendant ○○○○○.

First, it is difficult to recognize that the remaining Defendants obtained any pecuniary benefits in relation to the payment of the school operation support funds by the above Plaintiffs in light of the following: (a) school operation support funds paid by the above Plaintiffs belongs to the school juristic person which is the main body of operating individual private schools; and (b) the remaining Defendants are obligated to provide funds transferred, subsidies, and subsidies as provided by Article 30-2 of the Elementary and Secondary Education Act to the private school; (c) however, there is no evidence to deem that the remaining Defendants’ payment of the school operation support funds by the Plaintiffs reduced the amount of subsidies to the private school; and (d) it is difficult to recognize that the remaining Defendants obtained any pecuniary benefits in relation to the payment of the school operation support funds by the above Plaintiffs. Accordingly, the above assertion by the above Plaintiffs against the other Defendants of the above private school is without merit. (c) The remaining Plaintiffs except the parents of the private school (hereinafter referred to as “the remaining Plaintiffs”).

- Determination as to claims against the remaining Defendants

We examine whether there is no legal basis for the payment of money to the other plaintiffs as the school operation support fund or whether the above plaintiffs actually constitute tuition fees prohibited under the current law. As seen earlier, the first and the second schools provide for school operation support fund in the Elementary and Secondary Education Act, and the above plaintiffs also pay money as the school operation support fund, so there is no legal ground for collecting the school operation support fund. (The argument that the above provision of the first and the Elementary Education Act on the school operation support fund of the above plaintiffs is in violation of the Constitution that prescribes the principle of compulsory education, or the argument that it is invalid due to violation of Article 8 of the Framework Act on Education, Article 12 (4) of the Elementary and Secondary Education, and Article 12 of the Elementary and Secondary Education Act on the ground that the above provision on the school operation support fund of the above plaintiffs is unconstitutional. Therefore, we examine whether the school operation support fund of the above plaintiffs is actually a tuition fee.

Gap evidence 2 through Gap evidence 12, Eul evidence 1 through 7 (including each of them)

의 각 기재와 증인 고춘식, 이돈주의 각 증언에 변론 전체의 취지를 종합하면, 시 · 도교육청은 매년 12월경 국 · 공립중학교장 이사회와의 협의를 거쳐 다음해에 징수할 학교운영지원비 ( 권고안 ) 를 결정하고, 국 · 공립중학교장회장은 이를 개별 공, 사립 중학교 교장들에게 통보하며, 공, 사립 중학교 교장들은 학교운영위원회의 심의를 거쳐 학부모들로부터 징수할 학교운영지원비의 금액을 최종적으로 결정하는 사실, 이와 같이 결정된 학교운영지원비는 학교장이 납입고지서에 의하여 납입의 고지를 하고, 소위 ' 스쿨뱅킹 ’ 의 방법으로 학부모들의 계좌에서 학교의 계좌로 자동이체되며, 학부모들이 그 납부를 지체할 경우 해당 학교장이 공문을 보내어 그 납부를 독촉하는 사실, 학부모들이 납부한 학교운영비는 교원연구비, 교원 직책 및 관리 수당, 학교회계직원 및 비정규직의 인건비와 퇴직적립금, 학생복리비, 교수학습활동비, 공통운영비, 업무추진비, 시설비 , 예비비 등의 지출에 충당되는 사실을 인정할 수 있다. 그러나 한편, 갑 제2호증 내지 갑 제12호증, 을 제1호증 내지 을 제7호증 ( 각 가지번호 포함 ) 의 각 기재와 변론 전체의 취지에 비추어 인정되는 다음과 같은 사정, 즉 ① 초 · 중등교육법은 학교회계의 세입에 학교운영지원비가 포함되고, 학교운영지원비의 조성 · 운용 및 사용에 대해서는 학교운영위원회의 심의를 거쳐야 한다는 점만을 규정하고 있을 뿐 구체적인 금액 결정 및 징수의 절차, 방법에 관하여는 규정하고 있지 않은 점, ② 초 · 중등교육법에 의하면, 학교회계는 수익자부담경비를 제외하고는 세입과 세출을 연동시키지 않고 있으므로 ( 제30조의 2 ), 세입에 편성된 학교운영지원비는 다양한 목적의 지출에 사용될 수 있는 점, ③ 교원의 인건비, 학교의 신축, 개축, 증설에 관한 비용, 교과서 대금 등 취학에 필수적인 비용에 대해서는 국가 또는 지방자치단체가 직접 지급의무를 부담하므로 , 이에 대해서는 학교운영지원비가 사용되지 않는 점 ( 지방교육재정교부금법 제2조 내지 제11조 ), ④ 장애인 등에 대한 특수교육법은 특수교육대상자에 대한 의무교육을 규정하고 있는데, 같은 법 시행령 제3조는 의무교육의 범위에 관하여 “ 법 제3조 제3항에 따라 국가 또는 지방자치단체가 부담하여야 하는 비용은 입학금, 수업료, 교과용 도서대금 및 학교급식비로 한다 ( 제1항 ). 국가 및 지방자치단체는 제1항의 비용 외에 학교운영 지원비, 통학비, 현장 · 체험학습비 등을 예산의 범위에서 부담하거나 보조할 수 있다 ( 제2항 ). ” 라고 규정하고 있는 점, ⑤ 학교운영지원비가 학교회계의 세입예산에서 차지하는 비율은 평균 약 10 % 정도인 점, ⑥ 초 · 중등교육법은 수업료의 징수 등에 관하여 필요한 사항은 특별시 · 광역시 또는 도의 조례로 정하는 것으로 규정하고 있음에 반하여 ( 제10조 제2항 ), 학교운영지원비에 대해서는 학교운영위원회의 심의를 거쳐야 하는 것으로 규정하고 있는 점 ( 제30조의 2 제2항 ) 등을 종합하여 보면, 앞서 본 사정만으로는 위 원고들이 납부한 학교운영지원비가 실제로는 수업료에 해당한다고 인정하기 부족하다 ( 가사, 위 원고들이 납부한 학교운영지원비가 실제로는 수업료에 해당한다 하여도, 위 원고들이 납부한 돈이 그 자녀들의 교육을 위하여 사용된 사정은 앞서 본 바와 같으므로, 이와 관련하여 민법 제741조 소정의 이익 또는 손해가 발생하였다고 인정하기도 부족하다 ). 따라서 나머지 원고들의 나머지 피고들에 대한 위 주장 역시 이유 없다 .

3. Conclusion

Therefore, the plaintiffs' claims against the defendants of this case are without merit, and all of them are dismissed. It is so decided as per Disposition.

Judges Song Jae-man's Human Rights