제주특별법상 교육의원 피선거 자격제한 기각결정(2018헌마444)에 대한 판례 분석

Abstract

The purpose of this study is to analyze the Constitutional Court of Korea(hereinafter referred to as ‘CCK’) case. This Case(2018 Heon-Ma 444) is a precedent for Article 66 paragraph 2 of the Jeju Special Act(hereinafter referred to as ‘JSA’). Namely, it is a CCK's Cases of Citizen’s Rights to hold public office(hereinafter referred to as ‘RPO’). The constitutional trial of this restrictions on eligibility as candidates(hereinafter referred to as ‘REC’) was brought to the Constitutional Court by Jeju civic groups. The criterion for judgment is Article 37 paragraph 2 of the Constitution and the principle of equality before the law. This Article 37② is the principle of limiting basic rights(The freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated.). The main issue is whether the terms of more than five years of education or educational administrative experience(Article 66②) violate the Constitution. The CCK's all opinion decided that it was not against the Constitution, because this regulations of REC fall under the discretionary policy of the legislature. The fundamental purpose of this REC is to ensure Article 31(4) of the Constitution (Independence, professionalism and political impartiality of education) The conclusions of this paper are as follows. First, education members of local council system, which requires educational background, is consistent with the Constitution-spirit and the Education-autonomy of JSA. Second, the relevant leave of absence rules should be changed so that ordinary young teachers can become education members of local council. Finally, the Jeju Provincial Council will be resisted by Jeju residents unless retired education officials are prevented from monopolizing the post of Education Members of Local council for life.