교사의 체벌과 정당행위

Abstract

Corporal punishment in schools is intentional infliction of physical force upon a student in order to correct his/her behavior. It has been a hot issue in Korea whether to allow corporal punishment in schools. Scholars are divided into pros and cons about 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. The new Elementary and Secondary Education Act and its Enforcement Ordinance provide articles, which allow “guidances inflicting bodily pains” if they are “inevitable for the purpose of education.” The Supreme Court’s Decision as of June 10, 2004 is a leading decision, which provides the requirements of justifiable corporal punishment in schools following the Act and its Ordinance. The requirements are more specifically defined and stricter than the previous ones. However, the present article argues that, based on the constitutional interpretation of the Article 31(7) of the Enforcement Ordinance, ‘direct corporal punishment’, direct infliction of physical pain on students by using a teacher’s body or instruments, still should not be allowed; only ‘indirect corporal punishment’, infliction of pain by making students do some physical movements involving physical hardship, may be allowed; even then, the authority of corporal punishment should be given only to the head of the school, not to the teachers of the school. The article also argues that the phrase, “inevitable for the purpose of education”, should be interpreted more strictly.