학생인권조례와 학교장의 학칙제정·개정권의 한계

The student human rights ordinances and the extent of the principal’s authority to enact or amend the school regulations

Elementary and Secondary Education Act(hereinafter ESEA) Article 8 (1) prescribes that the head of a school may enact or amend school regulations within the extent of statutes or regulations(so called ‘pubryung’). On the other hand, according to the constitutional law, local governments may enact provisions relating to local autonomy(i.e. ordinances), within the limit of Acts and subordinate statutes(this, too called ‘pubryung’)(Constitution of the Republic of Korea Article 117(1)). So, it is problematic that which of the two ‘pubryung’s takes precedence over the other in its effect. In other words, it is a question of whether school regulations may be in conflict with ordinances in their substance. In this regard, it is a question of whether what the ‘pubryung’(“statutes or regulations” or “acts and subordinate statutes”) means; whether the ‘pubryung’ encompasses the ordinances; whether if the ordinances are included in the ‘pubryung’, it may be possible to conclude that school regulations should not violate the student human rights ordinances. Article 18-4 of the ESEA stipulates that founders, managers, and heads of schools shall guarantee the human rights of students provided in the Constitution of the Republic of Korea and International Covenants on Human Rights. Because the student human rights ordinances are enacted in deference to the spirit of the stipulation of the ESEA, we can conclude that the school regulations could not contravene the student human rights ordinances.