학문의 자유와 대학의 자율권의 주체에 관한 소고

Abstract

Academic freedom includes freedom of academic research, freedom of academic activities, and as a specific form, freedom of presentation of research results, freedom of teaching, and freedom of academic association. Academic freedom can be the subject of not only natural persons, but also organizations or corporations such as universities, higher education institutions, or research institutions. Freedom of an academic institution refers to the freedom of an academic research institution to autonomously determine all matters related to the operation of the institution without external intervention or interference. The freedom of universities is the essential content of "university autonomy" in order for universities as academic research institution to autonomously determine all matters related to the operation of the institution without external intervention or interference. On the other hand, even though the incorporated national university is a public co rpo ratio n, i t has been g ranted a " academic d omain" protected b y fundamental rights as a unique business area, and is independent from the state under the Organization Act, so fundamental right subjectivity is recognized in terms of academic freedom or university freedom. Non-corporated national universities, however, can only exercise fundamental rights against the state and cannot exercise them against the people, even if they fall under a "public corporation" in a broad sense. The Constitutional Court said that private universities are merely "facilities for education", so they do not have the ability to claim. Therefore, the Constitutional Court seems to view the subject of university autonomy as a 'school corporation' rather than a 'private university'. However, it seems more convincing to recognize "freedom of private education" or "freedom of private school operation" rather than to recognize "the subject of university autonomy" to "school corporations". And while both private universities and national universities are only "educational facilities", the Constitutional Court recognizes fundamental rights subjectivity for national universities and denies fundamental right subjectivity for private universities. However, even in the case of private schools, the establishment subjectivity is only different f rom that of national scho o ls, but they a re the same in terms o f faculty and curriculum, so there can be no essential difference from national schools in terms of the personal and national importance and influence of such education. Schools will be able to overcome these l imitations by recognizing "non-corporate associations" regardless of whether they are national or private, given that there is an organization called a scho o l with a t least a certain person(professor, school personnel, and s tudent) as a (university) member and i ts representative(president). This is because organization activities internally and externally, even if they are not corporations, are guaranteed by freedom of association. Therefore, universities must be protected by freedom of association as associations. The freedom of association guaranteed by Article 21 (1) of the Constitution naturally includes the freedom to form an organization or organize a association, and furthermore, "corporation etc. association" is also the subject of freedom of association. In addition, freedom of organization activities guarantees "freedom of organization internal activities", which is the right to autonomously determine and form internal matters of the organization, such as the association's organization and decision-making procedures, as well as "freedom of organization external activities", that i s, the auto nomy o f the organizatio n. It can be understood that private universities are subject to school regulations as universities are allowed to university autonomy, just as organizational autonomy is allowed not only to corporations but also to non-corporate corporations. Therefore, private universities are independent entities and associations, and the subject of the university's autonomy is recognized, and private universities should also guarantee the autonomy of universities to the state or school corporations.