헌법 제31조 제6항에 관한 소고

Abstract

This study aims to find issues on the Article 31 paragraph(hereafter ‘para’) 6 of the Constitution and to suggest new view points of interpretation theories. For these purposes, it examines the existing theories of interpretation on he Article 31 para 6 of the Constitution (II), looks up the legislative history of the Article (III), and analyzes the Article comparing to Constitution of other countries (IV). Finally, it suggests the issues and opinions, the implications of the Article(ⅴ). The main conclusion of the study is as follows: first, the Article 31 para 6 of the Constitution presents that the substantial parts of education shall be governed and institutionalized by the state. Furthermore, it means that the state recognizes and accept the education even if it is not institutionalized. Second, although the basic should be provided by law, the non-basic things might be provided by sub-laws such as decree or order. Third, something can be drawn from the Article of the Constitution or interpretation theories might not be provided by laws. Fourth, the basic points for the state to supervise the establishment and operation of schools should be provided by laws. Fifth, an another name of Article 31 para 6 of the Constitution would be 'no basic things without representation on education' (every basic points of education should be regulated by laws). Sixth, Article 31 para 6 of the Constitution means legal reservation of fundamental rights formation (Ausgestaltungsvorbehalte der Grundrecht). Seventh, Article 31 para 6 of the Constitution is one of formation articles, so the the power of legislation would be limited by substance articles such as Article 31 para 2 or para 4 which provides the contents of the education. <Reference> Constitution of the Republic of Korea Article 31(1) All citizens shall have an equal right to receive an education corresponding to their abilities. (2) All citizens who have children to support shall be responsible at least for their elementary education and other education as provided by Act. (3) Compulsory education shall be free of charge. (4) Independence, professionalism and political impartiality of education and the autonomy of institutions of higher learning shall be guaranteed under the conditions as prescribed by Act. (5) The State shall promote lifelong education. (6) Fundamental matters pertaining to the educational system, including in-school and lifelong education, administration, finance, and the status of teachers shall be determined by Act.