법률유보의 원칙과 교사의 교육권

Abstract

This thesis is to analyze the situations where teachers' rights are interrupted using legal approach, to draw the reasons why teachers' rights should be held, and to provide recommendations to support the rights. Analyzing the root causes for the interruption of teachers' rights, this study begins with a study on a the reservation of laws(Vorbehalt des Gesetzes in German) that the National Assembly transfers the regulatory duties to the government. This legal concept originated from the principles of constitutional governmental administration. Under the constitutional monarch, it provided the legal ground to defend the rights from the government. As the society evolved into the parliamentary democracy, it served as the proactive protection for the rights. Despite of this trend, the law governing the teachers responsibilities and duties is in infringement probation, which is the beginning step of the reservation of laws. The reason is that teachers used to be considered the lower government officers who had a special relation to the government, like any other government officers, in the era of the initial establishment of national educational system. Because of this relationship, teachers rights had not been respected as much they deserve. As the concept of basic educational rights was emerged, however, teachers rights were then viewed as personal relationship and something to protect. Teachers' rights to be protected involve the teachers' autonomy, guarantee on job specialization, and the internal rights related to any educational activities on the basis of freedom for education. For the realistic protection of the internal rights, the society accepts the job security, including the provision of the acceptable salary, and active involvement of teachers association. In evaluating the situations for the interruption of teachers' rights, this study found that the teachers internal rights were disrupted in many cases. Despite the fact that the teachers internal rights are one of the essential ones, they were not clearly defined with laws, and they were viewed as the regulatory reservation, not as the reservation of laws. This viewpoint implies that the National Assembly does not take its responsibility by transferring legislative command to the regulatory one, which is handled by the government, and thus, it cannot guarantee the realistic protection of teachers rights Therefore, this study concludes with the recommendation that, for the protection of teachers rights, the National Assembly need active involvement through legal probation.