敎育에 關한 國家와 地方自治團體의 權限

Abstract

Local Autonomy Act provides that government work is National priority attention or metropolitan priority attention, while Local Education Autonomy Act provides that general education work is local government authority. It does not provided criteria between nation work and local government in Constitutional law, and also sentence or term inferred feature of the local government work. Subsidiary principle that generally refers to work authority in local government law does not apply to educational administration. As a result, Court must establish a clear cut line of authority and responsibility in nation and local government work authority by judgment. Judgment means judicial legislation beyond the functions of settlement of a dispute or relief of right. Legislator should be decided the legal characteristics and authority of education work. But Legislator fails to distinguish clearly nation and educational superintendent work in law relating local government. And recognize and comprehensive authority to both sides. So nation and educational superintendent can be happen conflict of education work authority. As a result, education work authority decided by a posteriori settlement by court. Supreme Court decision in article adduced “precedent, theory or case been established about educational superintendent work authority” to illegality standard. Decision does not mention entirely the precedent, theory or case about educational superintendent work authority. It is to be desired that Supreme Court classified education work and authority the following standards, general classified standard about nation and local government work, “national unity” or “cost sharing.” Nation responsibility to education and codification of education system is stipulated in Constitutional law. Local Education Autonomy is educational community autonomy on the basis of professionalism and non-political position within the framework of Constitution and law. There are many implications that German federal constitutional court divided education work, “external education work” and “internal education work.” Educational autonomy system is not fake or derivative of local government system but entirely separate type of system. It should be institutionalized that inherent executive authority, work and intervention of government on the premise that educational autonomy system is “educational community autonomy” that based on material jurisdiction that means education in the range of national education duty according to constitution and law and personal jurisdiction that composed of educator, educate and school parent.