교권의 범위와 한계에 관한 연구- 법률유보원칙을 중심으로 -

Abstract

Recently the interruption of teachers' authority socially issued is spreading out in uncertain situation of the sense and scope of teachers' authority. The social voices that teachers' authority should be protected is growing, but what should be protected is uncleared. To substantially protect teachers' authority the scope of teachers' authority should be fixed. But ways to set the scope of teachers' authority have not been discussed properly. Therefore this study investigate the way to set scope of teachers' authority. It should be proper that teachers' authority used in order to realize is consider to be teachers' official authority. In this viewpoint the scope of teachers' authority becomes cleared by rights to learn of student. But the range of protection rights to learn of student is not clearly confirmed by law . On this account the scope of teachers' authority is made uncleared. Therefore to clear the scope of teachers' authority first of all it is inevitable to confirm the range of protection of rights to learn of student. The reservation of laws is the way that law is able to determine the range of protection of rights, and scope of administration. Also the protected area of right to learn of student and scope of teachers' authority are defined by reservation of laws. If the reservation of laws is realized, the most important thing is scope of administration which is able to intervene rights. In other words it means the range of the reservation of laws. Up to now various theories about range of the reservation of laws have been raised. Among them it is the principle of essence. that is supported by majority. The essence is recognized if it is required strong norms about the issues related to basic constitutional rights The stronger the degree of essence becomes , the greater gets the range that laws constituted by parliament is able to restrict administration. The principle of essence makes range of the reservation of laws devide in three dimensions. Namely they are the most essential thing, less essential thing, non-essential thing. About the most essential thing related to right to learn of student teachers' authority must be exercised in accordance with laws constituted by parliament, and about less essential thing teachers' authority can be exercised by delegation of law, and about non-essential thing teachers' authority can be exercised without grounds of law. Thus the principle of essence gives body to area of right to learn of student and scope of teachers' authority. If scope of teachers' authority is not cleared, substantive discussions about protection of teachers' authority can not be evolved. But it is no suitable way that decides to set scope of teachers' authority. Therefore the way to set scope of teachers' authority by using the reservation of laws will contribute to providing the premise which is required for evolving substantive discussion about protection of teachers' authority.