학교 법인의 재판 청구권 보장과 사립학교 교원의 권리 구제

Abstract

The Constitutional Court of Korea(CC) adjudicated that the section 10-③ of The Special Law for Raising Teachers' Status is against the constitution on Feb. 23 of 2006. The CC regarded the relation between an incorporated educational institution and a private school teacher as private law-like, not as public law-like. Based on these cognition, the CC contended that the decision of the Appeal Commission for Teachers is not a judgment by an administrative appeal regarding administrative case but a decision by an administrative body regarding private disputes. Such being the case, the section 10-③ of the law is no other than being unconstitutional because the section prohibits incorporated educational institutions from raising any administrative litigation. Although the judgment of the CC may be coincided with the logic of law, it will give rise to a serious problem. According to the judgment of the CC, the decision of the appeal commission for teachers carries no legal binding force. Thus, private school teachers who will not consent to the disciplinary punishment to himself/herself are forced to institute an administrative litigation or a civil suit. In such a case, the question that is examined on the courts is whether or not the official reprimand is illegal. That is, whether the punishment is rational or not will not be inquired on the courts. In this point, the judgment of the CC may damage the protection for the status of private school teachers. The judgment of CC, however, intends to secure the right of access to courts of an incorporated educational institution. In this respect, we need to delve into new procedure which satisfies the rights of private school teachers as well as incorporated educational institutions. It would be indispensable that the decision of the appeal commission for teachers carries legal binding force.