고등교육 영역의 법과 현실 - 대학 거버넌스에 관한 헌법재판소 판례를 중심으로 - (Laws and Reality in the Area of Higher Education - Focusing on the Constitutional Court's decision on university governance -)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 31권 / 3호 / 1 ~ 29페이지
· 저자명 : 조한상

초록

By reviewing the Constitutional Court's case on university governance, this paper reviewed the higher education statute, the problem situation of reality and the judgment of the Constitutional Court. The results obtained from the study are summarized as follows: First, the Constitution, the Higher Education Act, and the Private School Act raise various ideologies that promote higher education. The Constitutional Court has its own interpretation of the concepts of independence of education, autonomy of universities, autonomy of universities, and freedom of private schools. The Constitutional Court declares that these ideologies are guaranteed even as basic rights. It is understood that academic freedom and autonomy of universities are derived from Articles 21 and 31 of the Constitution respectively. This is a difference from the prevailing theory.
Second, the Constitutional Court grasps national universities based on the 'Anstalt Theory'. However, it saw that national universities were both the body of public power and the body of basic rights. This is different from the traditional 'Anstalt theory'. This paper proposed to understand national universities as 'unincorporated corporation'. Meanwhile, the Constitutional Court recognized the legitimacy of its purpose in the incorporation of national universities. It confirmed the constitutionality of personnel and finance issues related to the incorporation. Members of the national university have the right to participate in the election of the president. However, this does not immediately mean a direct presidential election Third, the Constitutional Court confirms the principle that the legal relationship between the founder and the private school is extinguished after the establishment of the school corporation. However, in a situation where the purpose of establishment cannot be maintained, the founder may, as an exception, be the right to petition with the Constitutional Court. What is essential in maintaining the identity of a school corporation is not the personnel succession of directors, but the purpose of establishing a school corporation. This understanding provided the basis for the constitutionality of the open or temporary director system. The Constitutional Court confirms the conflict between freedom of operation of school corporations and autonomy of universities in the issue of university councils. In the end, it revealed that it should be adjusted according to the basic right theory of 'principles of real harmony'. This paper pointed out the danger that systems for enhancing the public nature of private schools can become nominal. Above all, it was argued that the dual structure in private schools, which was stipulated in the Private School Act, should be transformed into a one-way structure.

영어초록

By reviewing the Constitutional Court's case on university governance, this paper reviewed the higher education statute, the problem situation of reality and the judgment of the Constitutional Court. The results obtained from the study are summarized as follows: First, the Constitution, the Higher Education Act, and the Private School Act raise various ideologies that promote higher education. The Constitutional Court has its own interpretation of the concepts of independence of education, autonomy of universities, autonomy of universities, and freedom of private schools. The Constitutional Court declares that these ideologies are guaranteed even as basic rights. It is understood that academic freedom and autonomy of universities are derived from Articles 21 and 31 of the Constitution respectively. This is a difference from the prevailing theory.
Second, the Constitutional Court grasps national universities based on the 'Anstalt Theory'. However, it saw that national universities were both the body of public power and the body of basic rights. This is different from the traditional 'Anstalt theory'. This paper proposed to understand national universities as 'unincorporated corporation'. Meanwhile, the Constitutional Court recognized the legitimacy of its purpose in the incorporation of national universities. It confirmed the constitutionality of personnel and finance issues related to the incorporation. Members of the national university have the right to participate in the election of the president. However, this does not immediately mean a direct presidential election Third, the Constitutional Court confirms the principle that the legal relationship between the founder and the private school is extinguished after the establishment of the school corporation. However, in a situation where the purpose of establishment cannot be maintained, the founder may, as an exception, be the right to petition with the Constitutional Court. What is essential in maintaining the identity of a school corporation is not the personnel succession of directors, but the purpose of establishing a school corporation. This understanding provided the basis for the constitutionality of the open or temporary director system. The Constitutional Court confirms the conflict between freedom of operation of school corporations and autonomy of universities in the issue of university councils. In the end, it revealed that it should be adjusted according to the basic right theory of 'principles of real harmony'. This paper pointed out the danger that systems for enhancing the public nature of private schools can become nominal. Above all, it was argued that the dual structure in private schools, which was stipulated in the Private School Act, should be transformed into a one-way structure.

참고자료

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