헌법이론의 관점에서 본 기본법의 정당성과 기능 : 교육기본법의 정당성과 기능에 대한 평가

Abstract

This article looks for the justification of the framework Act in the openness and abstractness of the constitution, examines what the framework Act prepared by legislators should contain in order to overcome the openness and abstraction of the constitution, and leans on this general theory, the current 「Framework Act on Education」 It aims to analyze critically. To achieve this purpose, first, the history of the framework Act and the existing views on it were briefly reviewed(II). In addition, from the viewpoint of constitutional theory, the legitimacy of the framework Act was found and its function was established(Ⅲ). Subsequently, based on the legitimacy and functions of these framework Acts, it was critically evaluated whether the Basic Education Act is properly performing these functions(vi). Finally, the article was organized after the above discussion(Ⅴ). The core of the discussion in this article is as follows. First, from the perspective of constitutional theory, the framework Act is a complementary legislative technique that can fill the gap between the constitution with openness and abstractness as its essence through a strategy that embodies the constitution and the law embodied by the “consensus body, the National Assembly”. In this sense, the framework Act is'the embodied constitution of the day'. Second, the framework Act's strategy for specifying the constitution is (i) presenting the contents of the constitution in consideration of the reality of the constitution at the time, and (ii) presenting the governance that can specify and present the contents of the constitution when an immediate problem arises. It is to do. Third, the Framework Act on Education contains some of the contents of the constitution in consideration of the reality of the current constitution. However, some do not contain the content to be included. In the future, it needs to be supplemented by the National Assembly. Specifically, the Framework Act on Education does not contain a separate governance that can specify and present the contents of the Constitution when an immediate problem arises. In addition, some of the framework Acts of education are not working effectively in the field of education. Efforts from the National Assembly and the administration are needed so that the Framework Act on Education can function properly as a framework Act in the field of education.