보호자의 교육권의 법리

Abstract

The major purpose of the study is to analyze the legal theory of the guardian's right to education critically. The major findings are as follows. First, the bases of the guardian's right to education are Article 31 Section 1 of the Constitution and Article 13 of the Basic Education Act. The natural law should be confined to the basis of the parent's right to education. Second, the established concepts of the guardian's right to education focused on only the specific content of this right. To accommodate the emerging new contents of the guardian's right to education in response to social change, it would be desirable to define this right as the guardian's right to educating his or her children. Third, the contents of the guardian's right to education consists of three parts. The first one is the right to choice of the place, the time, the teacher, curriculum and instruction and the language that the guardian wants to educate his or her children. The second content is the right to demand curriculum and instruction, the preparation and improvement of educational environment and educational information. The last content is the guardian's right to participation in schooling. Fourth, there are four different perspectives on the nature of the guardian's right to education: the natural right, the fundamental rights, power and duty. Because the basis of this right is Article 31 Section 1 of the Constitution, it is the fundamental rights. Fifth, the guardian's right to education has its own limitations in the subject, the educational field and the educational contents. Also, it is possible to restrict this right for assuring the student's right to education or if its restriction satisfies the requirements for restricting fundamental rights. Last, the student's right should come first. The conflict between the guardian's right to education and the teacher's power over education should be resolved in terms of the maximum assurance of the student's right to education. In the case of private education, the guardian's right to education is superior to the state power over education. In the case of public education, their conflict should be resolved on the basis of the norm-harmony principle. The relationship between guardian's right to education and the right of the establisher and manager of the school to education should be approached differently by the subject of the establishment and management of the school.