사립학교법 제55조에 대한 헌법재판소결정 비평- 헌재 1991. 7. 22. 89헌가106에 대하여 -

Abstract

In the Korean Teachers and Educational Workers Union Case [3 KCCR 387, 89 Hun-Ka 106, July 22, 1991], the Constitutional Court upheld Article 55 and 58 (1) of the Private School Act. The Article 55 stipulates that the articles on services of public school teachers should apply to services of private school teachers. Then, Article 58 (1) of the Act recites participation in a labor activity as a cause for job termination, according to the pertinent clause of the Civil Servants Act. The author claims that the decision, without a proper ground from the Constitution, improperly equalizes private teachers to public school teachers in relation with labor activities, and that the Court was wrong in deciding that Article 31 (6) of the Constitution preempts Article 33 (1) of the Constitution, because the Court reached such result with little constitutional ground, in providing such a priority. The author argues that harmonizing the two Articles of the Constitution to maximize constitutional rights of persons (private school teachers) would have been a better rationale for the Court in such cases. as such a harmonizing method has been a prevailing criterion in dealing cases containing opposite interests, Lastly, the author suggests the application of the proportionality test to the cases of teachers whose rights are restricted based on Article 31 (6) of the Constitution.