학문의 자유와 대학의 자치 - 헌법재판소의 판례에 대한 비판적 검토를 중심으로 -

Abstract

There can be four opinions about the relation between academic freedom and university autonomy: the first that the former and the later are the same in the aspect of substance and function as well, the second that the former and the later are the same only in the aspect of substance, the third that the former and the later are the same only in the aspect of function, and the fourth that the former and the later are divided in the aspect of substance and function as well. It is reasonable that academic freedom hat to include substantially and functionally the autonomy of university. If the academic freedom does not include the autonomy of university, the later must be understood as institutions-guarantee (Einrichtungsgarantie). And if the autonomy of university is understood as institutions-guarantee, people who claim that their autonomy of university as basic right which is guaranteed by the Constitution has been violated may not file a constitutional complaint. The Constitutional Court shall not apply restricted scrutiny when it control the legislation by the criteria of the autonomy of university. Therefore, the autonomy of university is required to be understood as procedure-right, not as institutions-guarantee. If the autonomy of university is understood as procedure-right, people who claim that their autonomy of university as basic right which is guaranteed by the Constitution has been violated may file a constitutional complaint. However, power of the Constitutional Court shall not be exaggerated and violate the competence of the Parliament, because the Constitutional Court may apply the principle of prohibition of undersized protection (Untermaßverbet) as criteria of norm-control. In the same context, there are so few possibilities to file a constitutional complaint on the base of the autonomy of university understood as procedure-right.