한국의 교육헌법 연구 20년의 성과와 과제

Abstract

Over the past two decades, researches in educational jurisprudence have been showing that there are many academic excellent outcomes and complicated problems to be solved, one of which is a compelling argument of establishing the relationship between the Constitution and various education laws. The purpose of this article is to spot contemporary issues and suggest some tasks to the academic circles in the field of education laws in Korea. The Constitution and the Fundamental Education Law guarantee equal opportunities in education regardless of faith, sex or socio-economic position. Like this, the principle of equality is enshrined in the Korean education law systems. This article briefly reviews the history of adoption of Education Clause(art. 31) in the Constitution and its continuance after many changes. Then, it discusses the tendency and contours of the research on the educational jurisprudence in the last tow decades, focusing on the fundamental rules of educational systems, local autonomous rights to educational issues, educators' rights to the participation to education policies, political impartiality of education, the teachers' rights of labor, the system of school books designated by the government, the subject of academic freedom, and the gist of fundamental right to education including equal educational opportunity and compulsory education. Finally, I suggest that contract theory should be recognized to education jurisprudence in Korea. In fact, the application of contract theory to the educational context is often complicated as cases require examination of the professional judgment of academic decision-makers in educational contexts. However, it is possible for courts to avoid intruding upon academic matters by making distinctions between academic-related disputes and cases involving misconduct to provide deference to institutions' professional academic evaluations.