의무교육에 대한 재학계약법리의 성립여부 판단: 대법원 2018. 12. 28. 선고 2016다33196 판결을 중심으로

Abstract

The Supreme Court’s case on which this study focuses shows that the safety accident in a private middle school should be judged by the legal principles of contract of attendance at school and should be applied to liability for default of the school violating obligations of care for safety. Whether a school is national, public or private establishment, relationship about attending at school is not seen as a pure private judicial contract but as a special contract of attendance at school based on the Education Act. However, given the fact that the constitution and legislations related to education make elementary and middle school education compulsory, this case needs to be reconsidered in detail whether it is judged by the legal principles of contract of attendance at school. If it is, each side―school and student―has respective obligation and in terms of “obligation”, there is a difference between obligation on the contract and obligation on compulsory education. In order to figure out legal characters of respective obligation on contract and compulsory education, this study has found out legal grounds for compulsory education on the constitution and education-related legislations, and for contract of attendance at school on civil law and civil procedure act not to mention numerous dissertations. As a result, without classifying a school as national, public or private the relations about attending at school between school and student should be seen as relation on a special contract of attendance at school in the domain of education act. The school, therefore, can take liability for default only if the school dose not come under compulsory education. In other words, considering the three legal characters of compulsory education―free, compulsory, and public, it is hard to judge this case on the basis of transaction regulations. This study will hopefully make a practical contribution to trials on school safety accidents.