학교체벌 관련 국내법령과 주요국 법령의 비교 연구

Abstract

In this study, I will try to examine the precedent and legislative attitudes of South Korea, Japan, the United States and Germany in conjunction with corporal punishment school problems, and find the implications from it. Results of the study proved that each country has taken the inherent attitude on school corporal punishment in the case law and statute. In Korea, indirect corporal punishment is allowed in schools while direct punishment is prohibited. In The United States, it is different from state to state, but private schools seem to be more permissive about corporal punishment while public schools show the similar percentage of permission and prohibition of corporal punishment in overall. Japan has a custom to flexibly interpretate its corporal punishment prohibition although it prohibits corporal punishment in the statute law. Also, in Germany, the corporal punishment is banned very strictly in both case law and legislation. However, the level of physical contact acceptable to corporal punishment were all different from each country. On the other hand, commonality among countries is also found such as the following. First, the case law and laws of each country tend to show a discordance of some extent. Expecially, for all countries, positive law prohibits rigorously corporal punishment but particularly exhibit the flexibility. Second, the case law and attitudes to precedent of corporal punishment has undergone changes without constance, depending on the social atmosphere of the time. Third, in all countries, if the damage physical and mental with students occurs, conflict of legal responsibility for it occurs. From these results, corporal punishment issue in schools is universal all over the world. However, it is confirmed that as the country is more advanced it has established more sophisticated legal guidelines about corporal punishment. In conjunction with this, Korea needs to work to reflect the law guidelines, formed though precedent, into the positive law and refine it.