국가의 교육권의 법리

Abstract

Critical Analysis of the Legal Theory of theState Power over Education Sohn, Heekwon(Associate Professor at MyongJi University)The major purpose of the study is to analyze the legal theory of the state power over education on the basis of the opinions suggested by the Constitutional Court of Korea and the constitutional and education law scholars. The major findings are as follows. First, the bases of the state power over education are the legalism of education, the related education acts and decrees and the parent's delegation. Second, the state power over education means the legislative, administrative and judicial power over education. The administrative power over education consists of supervision and leadership. Third, the contents of the state power over education consists of the state power over both curriculum and educational environments. Fourth, the nature of the state power over education is not right nor duty but power, public power and cultural power. Fifth, the state power over education should secure the justification by the people, assure the people's right to education effectively, and be harmony with the autonomy, professionalism and political neutrality of education. Last, the student's right to education should come first. The conflict between the state power over education and the guardian's right to education should be resolved by the norm-harmony principle. The relationship between the state power over education and the teacher's power over education should be decided on the basis of the incorporation of the educational values. The relationship between the state power over education and the school foundation and operator's power over education should be approached differently by the subject of the foundation and operation of the school.