Comparative Study of Law on the Curriculum Books on an

•Research Director: Deokgeun Kim•Research Co-authors: Hyunjin Yun, Myungjung Kim, Bocook Seo (Chungnam National University) and Hyeungsoeb Sohn (Kyungsung University)

Comparative Study of Law on the Curriculum Books on

an International Level

ⅠResearch Report 2012

Ⅰ. Necessity of Study◈ Operation of the education system according to the Korean legislations■ Operation of the education system according to the laws in accordance with Clause 6, Article 31

of the Constitution■ Textbooks are a part of the education system, so the principle of operating the education system

according to the laws is applicable to textbooks.■ According to Clause 2, Article 29 of the Elementary and Secondary Education Act, important

matters related to the textbook system, including the scope, production, accreditation, publication, supply and selection of textbooks, are managed by the Administration.

◈ Systematization of the laws applicable to textbooks■ The rules and regulations applicable to textbooks, which are not sufficiently established, should be

enacted as laws to provide the institutional authority and the legal stability. ▶ One of the reasons why the national textbook publication system has been criticized as

unconstitutional is that the applicable regulations are based on administrative legislation (Presidential Decree).

▶ �The legal status and the role of the textbook deliberation organization are also based on the Administrative Authority Commission and Entrustment Regulations (the Presidential Decree), and there is an issue in giving the authority to select proper textbooks, which is quasi-judicial in nature, to the administrative legislation.

■Related laws of Germany and Japan, which have similar legal systems to Korea, will be compared and analyzed with a focus on the legal issues raised, in order to derive implications.

Ⅱ. Contents of Study◈ International comparison■�Target countries: Korea, Germany and Japan■ Countries with the tradition of continental law that is similar to that of Korea■ Countries operating a textbook publication system with a focus on the national management and

accreditation■ Countries with high educational standards

◈ Major legal issues related to textbooks■�Level of fulfillment of the legislative reservation for educational system (textbook system)

▶ �Level of fulfillment of the legislative reservation for textbook system verified through an analysis of the laws and precedents of Korea

▶ �Level of fulfillment of the legislative reservation for textbook system verified through the analysis of German and Japanese laws

■�Issues related to the publication of textbooks▶ �Laws applicable to the government-issued, -authorized and –approved, and free textbook

publication systems▶�Demands for improvements of laws and regulations applicable to the textbook publication system

82•Comparative Study of Law on the Curriculum Books on an International Level

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■ Issues on the authority and the status of organizations related to textbooks▶�Laws and regulations applicable to organizations related to textbooks▶ �Status, allocation of the authority and limitations of central organizations and commissioned

organizations▶�Demand for improvement of laws applicable to the central organization

◈ Comparative Analysis Model

◈ Problems with current laws applicable to textbooks■ Level of achievement of the legislative reservation for educational system

▶�Stable system from the Constitution to the Presidential Decrees▶�Detailed regulations on textbooks are based on sub administrative regulations.▶ �Delegation to the Presidential Decree in accordance with the Elementary and Secondary

Education Act → Delegation to the Presidential Decree in accordance with the Enforcement Decree of the Elementary and Secondary Education → Detailed regulations included in the Rules on the Curriculum Books, which is the Presidential Decree

▶ �The issue over the imperative of the administrative legislation was raised according to the principle of the legislative reservation for educational system.

▶ �The issue is in conflict with Clause 6, Article 31 of the Constitution, which states that the education system should be defined by laws.

▶ �The issue is in conflict with Article 75 of the Constitution, which defines that the scope of delegation should be specific.

Germany Korea

Laws and regulations applicable to textbooks

Measures to improve laws and regulations applicable to Korean textbooks

Japan

The Constitution (framework act)Laws and regulations applicable to education

Legal status of laws and regulations applicable to textbooks

Government-issued / authorized/ approvedRegulations on publication procedure

Definition of central organization managing affairs related to textbooks and definition of the authority

Legislative reservation fortextbook system

System for publication of textbooks

Organizations related to textbooks

Figure 1� A Model for International Comparison of Laws applicable to Textbooks


■�Issues related to publication of textbooks▶ �Issues related to the government-issued system: conflict with the freedom of learning and the

freedom of education▶ �Issues related to the authorized and approved system: The government may maintain its control

over production and publication of textbooks through the authority to deliberate and cancel approval, despite the intention of the system to facilitate the voluntary production and publication of textbooks.

■�Issues related to the status and the authority of organizations related to textbooks▶ �The Minister of Education delegates the authority to manage specific affairs to external

organizations in accordance with the Administrative Authority Commission and Entrustment Regulations (the Presidential Decree).

▶ �The authority to manage affairs related to textbooks is delegated and commissioned to public organizations (superintendent of education, Korea National Institute for Special Education and National Institute of Korean History) and private organizations (Korea Institute for Curriculum and Evaluation, Korea Foundation for Advancement of Science & Creativity and Korea Development Institute).

▶ �The specialized and specific nature of the affairs related to textbooks makes it difficult to enact every law required, but the current system is not aligned with the principle of the legislative reservation for textbook system.

Ⅲ. Policy Implications◈ Regulation on fundamental affairs related to textbooks at the level of laws■ Affairs requiring regulations at the level of laws

▶While considering the inevitability of the administrative legislation, the fundamental affairs related to textbooks should be explicitly defined by laws for the stable operation of the related systems.

■�Fundamental affairs related to textbooks▶ Use, scope and compilation of textbooks

■�Current law system

Regulations Current Laws

Schools shall use books for classes of which the State has copyrights or books for classes that are officially approved by the Minister of Education.

Clause 1, Article 29 of the Elementary and Secondary

Education Act

Necessary matters on the range, writing, approval, recognition, publication, supply, selection and price settlement of the books for classes shall be determined by the Presidential Decree.

Clause 2, Article 29 of the Elementary and Secondary

Education Act

Necessary matters on the range of class books as provided under the provisions of Article 29 (2) of the Act shall be determined by the Presidential Decree.

Article 55, the Enforcement Decree of the Elementary and Secondary Education

Act

Table 1 Use of Textbooks


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Category Regulations Current LawsCurriculum

booksThe term “curriculum books” means textbooks and guide books.

Article 2, the Rules on the Curriculum Books

Textbooks“Textbooks” means books, audio records, visual and electronic works, etc. which are used in schools for the education of students.

Guide books“Guide books” means the books, audio records, visual and electronic works, etc. for teachers, which are used in schools for the education of students.

Government-issued books

“Government-issued books” means the curriculum books for which the Ministry of Education, Science and Technology has copyrights.

Authorized books

“Authorized books” means the curriculum books which have undergone the authorization by the Minister of Education, Science and Technology.

Approved books

“Approved books” means the curriculum books which have obtained approval of the Minister of Education, Science and Technology for being used in the cases where government-issued books or authorized books are not available, or where it is difficult to use either of them or it is re-quired to supplement them.

Category Regulations Current Laws

Government-issued books

Government-issued books shall be compiled by the Ministry of Educa-tion, Science and Technology: Provided, that such government-issued books as are deemed necessary by the Minister of Education, Science and Technology may be compiled through entrustment to research insti-tutions or universities, etc..


Authorized books

Developed by delegated or commissioned accreditation organizationsManual for Accreditation Organization (Administra-

tive Manual)

Approved books

Developed by delegated or commissioned approval organizationsManual for Approval Or-

ganization (Administrative Manual)

Table 2 Scope of Textbooks

Table 3 Complication of Textbooks

Regulations Current Laws

The principal of a school shall use the government-issued books so far as they are available, and if the government-issued books are not available, shall select and use the authorized books: Pro-vided, that the same shall not apply in the cases where he/she is compelled to use the approved books under Article 16 hereof due to non-existence of the government-issued books and autho-rized books, or where it is difficult to use either of them or it is required to supplement both of them.


■Direction of revision of laws▶ �Elevation of the principle of selection of the government-issued, authorized and approved books

provided in Article 3, the Rules on the Curriculum Books to Article 29, the Elementary and Secondary Education Act

▶ �Elevation of the definition of textbooks provided in Article 2, the Rules on the Curriculum Books to the Elementary and Secondary Education Act


▶ �Inclusion of the organization in charge of compilation of authorized and approved books in the current regulations defining the organization in charge of compilation of government-issued textbooks and elevation of the regulation to the Elementary and Secondary Education Act

◈ Legislation of the common criteria for compilation and deliberation of textbooks■ As the ground and the authority for development of the textbook review criteria and the current

guidelines for compilation are uncertain, there is a need to prepare and clarify the legal ground. ■ The accreditation organizations provide the review criteria through the manual (administrative

manual) for accredited books and approved books, respectively, but there is no legal ground.■ In order to eliminate the root causes of arbitrary compilation and review of textbooks and reflect

the social consensus, the laws and regulations on the fundamental affairs (the common criteria) should be enacted.

■ Items requiring the enactment of laws and regulations▶ �It is reasonable to specify the common criteria (compliance with the Constitution and related

laws and regulations, maintenance of neutrality of education, compliance with laws and regulations related to intellectual property rights and development of the curriculum and goal statements), the most fundamental of all affairs related to textbooks.

▶ �The deliberation criteria is not a fundamental affair requiring the enactment of laws and regulations, so there is a need for the legal basis for the quasi-judicial judgment of determining the approval of textbooks.

■Current laws and regulations

Common Criteria of Compilation

Detailed ItemsCurrent

Laws

Compliance with the Consti-tution and related laws and

regulations

• Laws and regulations including the Constitution, the Framework Act on Education, the Elementary and Secondary Education Act, the Enforcement Decree of the Elementary and Secondary Education Act and the Rules on Curriculum Books shall be conformed with. Manual for

compilation of govern-

ment-issued and autho-rized BooksMaintenance of neutrality of

education

• The contents of education shall serve the original purpose of educa-tion, and be fairly and educationally handled to avoid the use of contents for political purposes or as a tool to propagate a personal prejudice.

• The contents of education shall not promote or criticize certain politi-cal parties, religions, persons, races, products or organizations, nor shall they contain gender biases.

Compliance with the laws and regulations applicable to

intellectual property rights

• In relation to the intellectual property rights including the copyrights and the patent rights, the latest laws and regulations including label-ing of copyright shall be conformed with.

Manual for compilation of govern-

ment-issued and autho-rized Books

Development of the curricu-lum and goal statements

• The desirable character, the policy of development, the goal of educa-tion and the direction of compilation of textbooks provided in the curriculum shall be conformed with.

• The goal of learning to be achieved by learners shall be described in a learner-centered manner.

• Detailed goals shall be provided with a focus on the standard of achievements to be focused on by grade, area and learning element, and the competencies to be developed through learning should be defined.


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Common Criteria of Deliberation

Detailed ItemsCurrent

Laws

Conformity with the Constitutional Ideas

• Contents refusing, distorting or criticizing the legitimacy of Korea which has succeeded the tradition of the provisional government of Korea

• Contents refusing, distorting or criticizing the democratic basic order of Korea and the peaceful unification policy based on the basic order

• Contents refusing, distorting or criticizing the democratic republic, the national system of Korea

• Contents refusing, distorting or criticizing the fact that the territory of Korea is the Korean peninsula and the island annexed; and contents that do not mark Dokdo or the East Sea without justifiable reasons

• Contents refusing, distorting or criticizing Taegeukgi, and in particular contents that do not correctly present Taegeukgi

• Contents causing gender, religious or social discrimination in any areas, including political, economic, social or cultural areas

• Contents unfairly promoting or giving preferential treatment to, distorting or criticizing specific countries, races or ethnic groups

Manual for Deliberation on National-Designated and Accredited Books

Maintenance of Neutrality of Education

• Contents propagating political or personal prejudices or used as a means for religious education

Respect of Intellectual Property Rights

• Contents plagiarizing or imitating writings not published by a third party, or contents explicitly plagiarizing or imitating writings published by a third party

■ Direction of revision of laws and regulations▶ �Elevation of the common criteria for compilation included in the manual for compilation of the

Government-issued and Authorized textbooks in the Elementary and Secondary Education Act▶ �Enactment of laws and regulations of the common criteria for compilation, including

fundamental affairs related to textbooks (compliance with the Constitution, laws and regulations, maintenance of neutrality of education, compliance with laws and regulations applicable to intellectual property rights and development of the curriculum)

▶ �Elevation of the common criteria of review included in the manual for compilation of Government-issued and Authorized books to the Rules on the Curriculum Books

▶ �Enactment of laws and regulations by streamlining nine perspectives of three areas of the current criteria of review

◈ Establishment of the Textbook Committee and centralization of delegation and commissioning■ Granting of the authority to prepare the common criteria, make an order for correction and make

a order to cancel approval, which are material affairs requiring the national consensus, to the Textbook Committee▶ �Decisions of the Administration for establishment and operation of the textbook committee can

be justified in terms of the issues of the ideas of textbooks and the neutrality of education▶ �Definition of the authority, organization and members of the Textbook Committee in the

Elementary and Secondary Education Act■ Centralization of the regulations applicable to the approval of approved books of which the

authority is granted to superintendent of education as the Administrative Authority Commission


and Entrustment Regulations (the Presidential Decree)■ Direction of revision of laws and regulations

▶ Granting of the authority to prepare the joint compilation and review criteria, order correction and order cancellation of approval to the Textbook Committee

▶ Definition of the approval-related affairs of which authority has been granted to superintendent of education in the Administrative Authority Commission and Entrustment Regulations, and deletion of Chapter 8 (Granting of Authority) of the Rules on the Curriculum Books

Ⅳ. Expected Benefits◈ Fulfillment of the legislative reservation for textbook system■ Elevation of the fundamental affairs related to textbooks, including the regulations on textbooks

for which the Administration has the authority, into laws and regulations, in order to comply with the regulation of the prohibition of the comprehensive delegation and the principle of the legislative reservation for educational system (textbook system) defined by the Constitution

◈ Provision of the legal basis for administrative affairs related to textbooks through the enactment of laws and regulations■ Securing of the legal authority of the administration and stability in enforcement by enacting laws

and regulations applicable to general affairs related to the compilation and review of textbooks among the specific administrative affairs not defined by current laws and regulations

◈ Strengthening of the legitimacy of national administrative activities by establishing the Textbook Committee■ �Establishment of the Textbook Committee in charge of issues such as bias in textbooks and

neutrality of education by actively reflecting public feedback about national administrative actions such as compilation and review of textbooks

■ �Check of excessive authority of the administration through regulations applicable to organization of the committee

◈ Critical discussion on textbooks and building of a national consensus through enactment of laws and regulations■Reflection of diverse criticisms in the course of the enactment of laws and regulations applicable to various issues related to textbooks that are managed at the level of administrative regulations■Reaching a national consensus on textbooks through the process of reviewing legislative bills at the National Assembly


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Comparative Study of Law on the Curriculum Books on an