학생인권조례 이후 학교체벌의 허용 여부와 범위

Abstract

It has been a hot issue in Korea whether to allow corporal punishment in schools. Scholars argue for and against on this controversial issue. The Korean Supreme Court has maintained that it may be justifiable if it is properly used as an ultima ratio for the educational purpose of correcting the student’s behavior. As some liberal superintendents of Local Office of Education in 2010, including the Seoul Office of Education, propelled to establish the ‘Ordinance for Students’ Human Rights’ embodying the prohibition of corporal punishment in schools, the Ministry of Education and conservative teachers’ organizations strongly objected to them. After hot debates and legal disputes, the Enforcement Ordinance for the Elementary and Secondary Education Act of 2011 was revised to prohibit ‘direct’ corporal punishments,direct infliction of physical pain on students by using a teacher’s body or instruments,and allowed ‘indirect’ corporal punishments, infliction of pain by making students to do some physical movements involving physical hardship. This Article starts to review the debates caused by ‘Ordinance for Students’ Human Rights.’ Second, it examines the OECD countries’ law and international human rights norms regarding corporal punishment in schools. Third, it reviews the constitutionality of corporal punishment in schools and justification requirements of the corporal punishment under the new Enforcement Ordinance. The Author argues that all the corporal punishments in schools, direct or indirect, constitutes breach of the Korean Constitution as well as International Convention on the Rights of the Child;‘indirect’ corporal punishments, allowed by the Enforcement Ordinance, should be strictly controlled in method and process before their constitutionality is reviewed by the Constitutional Court.