헌법정신 관점에서의 교육기본법 개정 논의

Abstract

The purpose of this study is to initiate amendments of the Fundamental Law of Education(hereinafter referred to as FLE). The basic viewpoint of analysis is based on spirits of The Constitution(Article 31; Education). For this research purpose, this article analyzed advanced research about the FLE, scholar’s theories on the Right to Education, Constitutional Court precedents, foreign FLE’s examples(Japan and Taiwan), and the other amendments proposed by 20th the National Assembly(2016-2020). This article composed of five chapters; The problem situation, The tendency of advance study and the spirit of the Constitution as a basis for judgment, Characteristics of the FLE and comparison with foreign cases, The direction of law reform for solution of the issues, and The conclusions. The seriousness of the problem is said to have been revised 16 times in the past 20 years, submitted 17 amendments in the past two years. The purpose of this FLE is to provide for the rights and duties of citizens and the obligations of the State and local governments on education, and prescribe an educational system and fundamental subjects for its operation. The FLE regulated the relation of the rights, duties, responsibilities among the parties to an education(Students, Parents, Teachers, School-founder and manager, Nation and Local governments) As a conclusion, This article suggested the four tasks about the FLE. Firstly, The Right to Learning should be re-defined as the fundamental rights to eduction. The FLE should be amended to ensure the spirit of the Constitution. That means harmony with Article 31 of the Constitution. The FLE should be recognized as a ‘Education Constitution’, not the act on promoting policies. Finally, The cases of Japan and Taiwan have given many indications on the principle of role division between the state and local authorities, and valid guarantee of the FLE