학생징계의 한계와 구제

The boundary and remedy of student discipline

While disciplinary punishment on students is an educational discretion of the principle of the school, the necessity of legal control is great as it is important in limiting the rights, imposing the duties and others related status of students. Nevertheless, the amount of studies on disciplinary punishment on students tend to be smaller than those on physical punishment on students and studies in the area of law were relatively smaller than those in pedagogy. Also dualization of the Elementary and Secondary Education Act and the Higher Education Act, division of national or public schools and private schools, and so forth contributed to the lack of studies on disciplinary punishment on students in the integrative perspective. Under these circumstances, this study explores the limits of and solutions to disciplinary punishment on students, the most basic issues, by approaching in terms of law. The concept of disciplinary punishment on students was clarified against physical punishment for discussion, first of all, and the legal characteristics of disciplinary punishment on students were understood to have legal effects as a kind of self-administration. As for the limit of disciplinary punishment on students, blind points of the existing opinions were identified and its systemization was attempted by newly dividing into procedural and substantial limits. What is important as procedural limits is the process of opinion submission based on education-related laws that materialized the Constitutional due process protection, which saw that heavy disciplinary actions such as expulsion would be illegal or invalid if opinion submission process had not been taken regardless of whether such rules existed in school regulations. As for substantial limits, educational necessity , an indefinite concept prescribed in education-related laws is identified as a requirement of disciplinary acts or a standard to decide the limit of discretion and the opinions that saw the above concept in a limited way were critically discussed. What is important for substantial limit is the limit of discretion. The conceptual ambiguity of the internal limit is identified by illuminating elements discussed as internal limits of disciplinary punishment on students in the existing pedagogy in a new legal perspective and the above elements were understood only to be special educational considerations to be deliberated in discretion. As for remedies of disciplinary punishment on students, disciplinary punishment on students naturally becomes the subject of judicial reviews but still, in terms that disciplinary punishment on students is an educational discretion and thus, implicates educational judgments, a professional area, the scope of judicial reviews was understood to be limited. As for remedial procedures, separation of national or public schools and private schools divides types of lawsuits on disciplinary acts into administrative and civil litigations and problems of differentiated issues arise. Considering that legal relations of disciplinary punishment on students in national or public schools and private schools do not vary greatly, it was pointed out that flexible operation of lawsuits would be necessary while retrials of expulsion newly introduced in the Elementary and Secondary Education Act were explored along with the relationships with the existing remedial process. Finally, a few points of improvement or arrangement in terms of disciplinary punishment on students were suggested.