Government legislation ministry rules tutoring shops cannot be sanctioned over false advertising

The government legislation ministry said Tuesday that education superintendents cannot suspend tutoring shops or private tutors for exaggerated or false advertising when recruiting students, because the academy law sets no such grounds for those two categories.

The ruling responds to a question of whether the superintendent of education may order the closure of a tutoring shop, the suspension of lessons or a halt to private tutoring under Article 17 (2) 5 and Article 17 (3) 5 of the law governing the establishment and operation of private academies and private tutoring, known as the academy law. The answer is no.

The statute is explicit for academies. Article 17 (1) 9 lists exaggerated or false advertising when recruiting students as a ground for administrative action against a private academy, alongside the catch-all offense of violating the law or an order issued under it. The same article, in the paragraphs covering tutoring shops and individual private tutors, carries the catch-all offense but not the advertising ground.

The ministry reasoned that because the law names the advertising offense only as a ground for action against academies, such conduct by a tutoring shop or private tutor cannot be read into the catch-all offense. It also cited the Framework Act on Administrative Regulations, which bars administrative agencies from restricting rights or imposing duties through regulations without a legal basis.

The ministry went on to read "an order issued under this law" narrowly. In ordinary legal usage the phrase refers to regulatory commands issued by administrative agencies, such as presidential or ministerial decrees. The enforcement decree and enforcement rules of the academy law likewise contain no prohibition on exaggerated advertising by tutoring shops or private tutors.

The ruling also rejected the argument that the superintendent's general supervisory powers fill the gap. Under Article 16 (3) and (4), the superintendent may issue other necessary orders to academy operators and instructors and take other necessary measures for private tutors. By that reading, the superintendent could order a tutoring shop or private tutor to correct an advertisement and then sanction a violation of that order under the catch-all offense.

That reading fails, the ministry said. A corrective order targets a specific breach of the law and exists to restore lawful order. Where Article 17 separately designates exaggerated advertising as a ground for action against academies but imposes neither a ground for action nor a distinct prohibition on tutoring shops and private tutors, treating the general supervisory provisions as authority for a corrective order and a subsequent suspension stretches the range of sanctions the article sets out.

The ministry attached a legislative improvement recommendation: whether sanctions should also be available when tutoring shops and private tutors advertise exaggeratedly is a policy question, and if the power is needed it should be written clearly into the academy law.