[VIEWPOINT]Revised bill needs revisionA revised bill governing private schools passed the National Assembly on December 9 while the lawmakers of the main opposition party refused to participate. Members of the Association of Private Middle and High Schools reacted strongly against the bill and said they would file an appeal with the Constitutional Court and submit an injunction to suspend the legal effect of the bill. The Grand National party also launched a protest outside the National Assembly, with Chairwoman Park Geun-hye leading the fight. Members of the Association of Private Middle and High Schools maintain the position that they will stop accepting new students in the spring semester and even close their schools, and the Education Ministry is fighting back with such extreme measures as canceling the approval of directors on school boards and appointing outside directors instead. It is an indiscreet fight that holds the education rights of our children hostage.
All fights have a winner and a loser. It can be said that the Education Ministry has put itself in an advantageous position with the revision of the law. However, the positions of winner and loser can change in a second. When private schools threaten such extreme measures as closing their schools, the Education Ministry may become the loser. One can only be curious to know why the ministry and the governing party have decided to revise the private school law despite such opposition and at the risk of holding the education of our next generation hostage.
On the surface, the goal of the revised law lies in adopting an open director system and cleaning up corruption at private schools. However, the revised law forces corruption-free private schools to adopt an open director system also. Minister of Education Kim Jin-pyo expressed the view that the new law was not in violation of the constitution, because the ratio of outside directors was reduced to a quarter in the process of negotiations at the National Assembly, and the method of ap-pointment was to be decided by the articles of association.
The essence of the controversy is not to do with the method of appointment, but with the fact that appointing outside directors has been forced by law. Many legal experts, including three of the four Education Ministry consultative lawyers, have expressed their opinion that there is a chance the revised bill may be unconstitutional. There is a big chance of unconstitutionality because the law overly violates the schools’ rights to organize their boards of directors and manage their schools. On the other hand, there is also the opinion that private schools are not really private organizations but public corporations, since most private schools are managed on government subsidies and fees paid by students.
It is true that there is a clause in Article 23 of the Constitution that stipulates that property rights can be limited for the public welfare. However, this means they can only be limited by law when the public interest is greater than the private interest. If this is not so, it becomes a violation of the basic principle of the Constitution that prohibits excessive violation of personal rights. The Constitutional Court has also decided that limitations on property rights can only be constitutional when the cause is just; the method of limitation is appropriate; the damages are minimized and the balance of legal benefits can be secured.
If the revised private school law really aims at cleaning up corruption in private schools, its justification will probably be acknowledged. However, forcing the law on corruption-free schools is definitely an inappropriate limitation of rights. On top of that, considering the fact that private schools take the role of public education that the government should have taken, using private funds, limiting their rights can be seen as going against the rule of minimum damages. Also, considering that the number of people who establish private schools or invest in them will decrease after the revision of the law, it cannot be said that the new law will increase public benefits. Especially, it can be said that making it harder to establish private schools that may lure students back to Korea goes against the public interest, when we consider the reality where people send their children overseas for competitive education because our public education system has crumbled.
Many private schools are already adopting an open director system according to their articles of association, as was mentioned by the education minister. This means that the open director system can be implemented without imposing legal restraints. Strict criminal and civil punishments have already been imposed on private schools involved in irregularities. The revised bill stirs up suspicions that its fundamental purpose might be in strengthening the supervisory rights of the Education Ministry. Politicians and the Education Ministry must make an effort to come up with a new bill suitable for the long-term education policy of the nation.
* The writer is a professor of commercial law at Soongsil University. Translation by the JoongAng Daily staff.
by Chun Sam-hyun