사립학교의 자주성과 공공성-학교법인의 사학의 자유를 중심으로

Abstract

Since 2005, critics and supporters of the amendment to the Private School Act and the constitutional complaint against it have been trading blows in political and social arguments. It is fundamentally derived from the difference of views concerning the two conflicting values, the independence of the private school and the public characteristics of the private school. It is a basic problem which is associated not only with the settlement of the constitutional complaint but also with the settlement of conflicts which occurs among those involved such as the government, educational foundations, schools, teachers, students and parents in the educational decision-making process or legislative proceedings. In this paper, a basic legal character and structure of independence and public characteristics of the private school has been analysed, especially around legislative regulations on the management of foundation itself and of private school. The private schools in Korea are thoroughly incorporated in the system of public education by the Constitution and the laws, and the legal character of private school could be, in terms of the administrative law, explained that it is a kind of chartered corporation which will be established and managed for the public service called “education”. Consequently, the freedom of private school is under more possibility of legislative regulations. The independence of education should be respected, but there are strained and cooperative relations between independence and public characteristics. In the matter of independence, multi-layered problems arise from the collision of various values, such as the freedom of educational foundations, the autonomy of school, and the teacher's and student's(or parent's) right to participate in education. The right of educational foundations to establish and manage private school is based on Article 10, Article 34 section 1 and 4 of the Constitution, not on the property right from Article 23. This basic right can be restricted by the government which has responsibility for enhancing the public characteristics of the private school, by the request for the autonomy of school, and by the rights of teachers and students(parents) to participate. It can be largely shaped and restricted by legislation unless it is infringed essentially or excessively. The main disputes around the constitutional complaint is how far may the legislative regulations reach against educational foundations, concerning the free formation and management of its organizations and agencies. Shaping a system to raise the public characteristics in this area lies within the limits of legislative power since the foundations are intrinsically burdened with the public characteristics of the education.