‘자유롭게 교육을 받을 권리’로서의 학습권의 범위와 한계 연구

Abstract

The purpose of this study was to examine the concept and nature of a right for learning in modern times and disputes on the possibility of infringement of a right for learning by two different judicial precedents. One of the two judicial precedents was judgment of unconstitutionality against prohibition of private tutoring, and the other was judgment of constitutionality on the ordinance that ordered hagwons(academies) to be closed late at night. It's basically meant to make some suggestions on the scope and limit of a right for learning as a right to be educated at one's own option, namely freedom not to be unreasonably discriminated in terms of education. The findings of the study were as follows: First, the judgment that prohibition of private tutoring was unconstitutional seemed not to infringe on a right for learning but to be the legitimate exercise of a right of education by the nation in that the nation has an obligation to curb the harmful effects of private education and relieve economic divide between classes. Second, the judgment that the ordinance of shutting down hagwons late at night was concluded as an excessive intervention by the nation that regarded a right for learning as one of fundamental rights that was related to a right of freedom and focused on freedom of learning. Whether a national policy or system is likely to infringe on national security, national order or public welfare is one of criteria to determine whether it violates a right for learning or not. According to this criterion, late-night private education by hagwons is not quite likely to produce negative social effects or violate public welfare. In contrast, private tutoring such as expensive private lessons are highly likely to produce harmful social effects such as provoking disharmony between classes or heightening educational divide. Therefore it seems reasonable to curb private tutoring for the sake of public interest. A right for learning as a right to receive education at one's own option refers to a right of students to learn at their own option and on their own, and it doesn't mean to allow expensive private tutoring or excessive prerequisite learning. It's pretty resonable that the nation can restrict the right of students and parents for education(learning) due to its right of education, and that is the obligation of the nation at the same time.