학칙의 법적 성질과 규율범위 (The Legal Character and Purview of University Regulations)

서지정보

· 발행기관 : 한국외국어대학교 법학연구소
· 수록지 정보 : 외법논집 / 29호 / 249 ~ 279페이지
· 저자명 : 김호정

초록

The freedom or autonomy of university is explicitly prescribed at Article 31's 4th clause of constitution, however, granted that there's no regulations like this autonomy of university has been growing with being intimately associated with academic freedom and is secured as the constitutional fundamental right and an essential substance under guarantee of academic freedom.
It's hard to say easily that who is the subject of the fundamental right of university's autonomy. In case that the self-control of university means that from a nation the president of a public university and incorporated institution's council of a private university may be included as the subject. But in case that the self-control of university means that of university's member, especially the faculty as well as the self-control of university from a nation the faculty is the only subject of the fundamental right of university's autonomy.
On the current positive law a public university is as a public structure established for education by a nation or a local autonomous entity and a private university is as a private structure established for education by a civilly incorporated institution, then both are not acknowledged as a corporation sole. Therefore it's usual to understand that university regulations are public structure's rule which is a kind of administrative regulation for public university and private contract's clause for private university.
Granted that an university isn't acknowledged as a corporation sole, however, with taking it into consideration that self-control of university is secured as the constitutional fundamental right a university may be thought of having the substance as a organization within the scope of academic autonomy. In other words a national university may be seen to have both substance as a public structure within the scope of academic autonomy and an organization within the scope of academic autonomy as well. In case of Japan having a similar current law the judicial precedent and the theory of learned circles of educational law normally comprehend that university regulation is an autonomous regulation formed in a university which is a specially partial society with advocating binding power by common law as the reason.
University regulations as a regulation for self-government have never been regulated as a exceptional legislation form against the rule of the National Assembly Legislation but are not unconstitutional on account that there's an constitutional needs of setting up a new legislation form well worth being admitted the university regulation's character as a law and regulations. The autonomy of university, as the constitutional fundamental right, can bear a construction that it has the right of one's own responsibility in regard of academic works.
University regulations are autonomous regulations which can extensively regulate academic matters within the scope of the ordinance and can regulate legal matters. At this moment the classification between the matters regulated by ordinance and the matters regulated by university regulations raises its head. This matter should be concluded not at the sight of the law formation but the substantive conversation in regard of what the contents is self-control of university. The relation between university regulations and the articles in the rule of a private university should be not the relation holding a prominent position by one party but the relation based on mutual respect of each regulating province.

영어초록

The freedom or autonomy of university is explicitly prescribed at Article 31's 4th clause of constitution, however, granted that there's no regulations like this autonomy of university has been growing with being intimately associated with academic freedom and is secured as the constitutional fundamental right and an essential substance under guarantee of academic freedom.
It's hard to say easily that who is the subject of the fundamental right of university's autonomy. In case that the self-control of university means that from a nation the president of a public university and incorporated institution's council of a private university may be included as the subject. But in case that the self-control of university means that of university's member, especially the faculty as well as the self-control of university from a nation the faculty is the only subject of the fundamental right of university's autonomy.
On the current positive law a public university is as a public structure established for education by a nation or a local autonomous entity and a private university is as a private structure established for education by a civilly incorporated institution, then both are not acknowledged as a corporation sole. Therefore it's usual to understand that university regulations are public structure's rule which is a kind of administrative regulation for public university and private contract's clause for private university.
Granted that an university isn't acknowledged as a corporation sole, however, with taking it into consideration that self-control of university is secured as the constitutional fundamental right a university may be thought of having the substance as a organization within the scope of academic autonomy. In other words a national university may be seen to have both substance as a public structure within the scope of academic autonomy and an organization within the scope of academic autonomy as well. In case of Japan having a similar current law the judicial precedent and the theory of learned circles of educational law normally comprehend that university regulation is an autonomous regulation formed in a university which is a specially partial society with advocating binding power by common law as the reason.
University regulations as a regulation for self-government have never been regulated as a exceptional legislation form against the rule of the National Assembly Legislation but are not unconstitutional on account that there's an constitutional needs of setting up a new legislation form well worth being admitted the university regulation's character as a law and regulations. The autonomy of university, as the constitutional fundamental right, can bear a construction that it has the right of one's own responsibility in regard of academic works.
University regulations are autonomous regulations which can extensively regulate academic matters within the scope of the ordinance and can regulate legal matters. At this moment the classification between the matters regulated by ordinance and the matters regulated by university regulations raises its head. This matter should be concluded not at the sight of the law formation but the substantive conversation in regard of what the contents is self-control of university. The relation between university regulations and the articles in the rule of a private university should be not the relation holding a prominent position by one party but the relation based on mutual respect of each regulating province.

참고자료

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