Superintendent's supervisory power over private kindergarten accounts and refund orders

1. 01Question

   Even where a private kindergarten is set up by an individual rather than a corporation, must its director follow the accounting methods laid down by law, and how far may the Superintendent of Education order money used for other purposes to be recovered into the kindergarten's accounts and returned to the parents who paid the specialised education fees?

2. 02Holding

   Yes. Even a kindergarten set up by an individual must keep its accounts in the ways laid down in Article 2(1), 2(3), 29, 33 and 51 of the Private School Act and Articles 27 to 34 of the Rules on Finance and Accounting of Private School Institutions, so its director owes a duty to follow them, and the Superintendent of Education may order the director to correct or change what was done otherwise. That power, however, may be exercised only to put right after the event what the prescribed accounting methods required, and it may not go beyond that unless another provision of the Early Childhood Education Act or related statutes authorises it. On these facts the kindergarten had in fact provided the specialised education it was paid for, the surplus could lawfully be brought into the school fee account, and ordering recovery into the kindergarten's accounts alone could remedy the withdrawal to the church, so the order to refund the fees to the parents lacked a basis and appeared to exceed the inner limit of the power.

   Summary of the holding, verbatim

   사립유치원의 원장 등에게는 유치원 운영과 관련하여 법정된 회계처리방법을 준수하여야 할 의무가 있고, 사립유치원의 지도·감독기관인 교육감에게는 사립유치원의 원장 등에 대하여 법정된 회계처리방법을 준수하지 않은 사항을 시정 또는 변경하도록 명할 수 있는 지도·감독의 권한이 부여되어 있다(유아교육법 제30조 제1항).

   Unofficial English translation

   The principal, etc. of a private kindergarten has the duty to comply with the method of accounting treatment prescribed by law in connection with the operation of the kindergarten, and the Superintendent of Education, who is the authority to direct and supervise private kindergartens, is granted the authority to direct and supervise, and to order the principal, etc. of a private kindergarten to rectify or alter matters for which the method of accounting treatment prescribed by law has not been complied with (Article 30 paragraph (1) of the Early Childhood Education Act).

3. 03Disposition

   Partly reversed and remanded Stated in the decision

   원심판결 중 특성화교육비 반환처분에 관한 원고 패소 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 나머지 상고를 기각한다.

   Unofficial English translation

   The judgment of the court below insofar as it concerns the disposition ordering the return of the specialized education expenses, to the extent the plaintiff lost, is reversed, and this part of the case is remanded to the Seoul High Court. The remainder of the final appeal is dismissed.

4. 04Form of the test

   Elements stated Stated in the decision

   다만 교육감의 회계처리방법 준수 관련 지도·감독의 권한은 위반된 회계처리방법을 법정된 것으로 준수할 수 있도록 사후적으로 시정하는 범위에서 행사되어야 하고

   Unofficial English translation

   However, the authority of the Superintendent of Education to direct and supervise compliance with the method of accounting treatment must be exercised within the scope of rectifying matters after the fact so that the violated method of accounting treatment may be complied with as the one prescribed by law, and

5. 05Factors

   • 위 유치원은 학부모들로부터 특성화교육비를 지급받아 이에 따른 특성화교육을 실제로 실시하였으므로
   • 학부모들이 납부한 특성화교육비가 전부 특성화교육에 소요되는 비용으로 지출되어야 한다고 볼 만한 법적 근거가 없는 점
   • 교육감의 지도·감독 권한은 법령에서 허용한 목적 범위에서 행사되어야 하는 내재적 한계가 있는데
   • 부당하게 인출된 돈을 유치원의 회계로 회수할 것을 명한 부분만으로 충분히 그 목적을 달성할 수 있는 점

   Unofficial English translation

   • since the kindergarten received specialized education expenses from parents and actually conducted the specialized education thereunder,

   • there is no legal basis sufficient to regard that all of the specialized education expenses paid by parents must be spent on costs incurred for specialized education,

   • the authority of the Superintendent of Education to direct and supervise has the inherent limitation that it must be exercised within the scope of purposes permitted by statutes and regulations,

   • the purpose can be sufficiently achieved by the part ordering the recovery of the monies withdrawn in an improper manner into the accounting of the kindergarten alone.

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 2019. 12. 27. 선고 2019두43436 판결

   Unofficial English translation

   Supreme Court Decision 2019Du43436 decided December 27, 2019

   Decisions referred to

   [1] 대법원 2019. 12. 27. 선고 2019두43436 판결, 대법원 2022. 3. 31. 선고 2021두49888 판결

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   Where some pupils received the specialised education and others did not, may the Superintendent order the fees refunded only to the latter, or does the reasoning here bar any refund order once the education was in fact provided?

   The remand judgment of the Seoul High Court on the refund order will show how the inner limit is applied on the facts. A later decision interpreting the boundary between corrective and other purposes under Article 30(1) of the Early Childhood Education Act, or an amendment to Article 29(2) of the Private School Act or Article 13(2) of its Enforcement Decree, would call for this entry to be read again.

Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

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