憲法上 敎育基本權에 관한 硏究 : 敎育을 받을 權利를 中心으로

다국어 초록 (Multilingual Abstract)

In this dissertation, at first, I deal with a generality of education and then consider that the education is realized and develop as right toward basic right in constitution process to generalization in history, and define the conception of the Fundamental Right of Education in the context of essence of education in my own way and then discuss the legal quality, subject,and context of the Fundamental Right of Education. In addition, I examine the security principle and system of the Fundamental Right of Education through the interpretation of the constitution's provisions on educational rights and discuss the content of a concrete security.
First, I have apprehended that the education's essence is the formation, growth and development of a subjective character through the learning in the most important point on this study, and such an education is enhanced toward the inalienable human right is based on the human right thought of modern civil society. I, then, understand that the education as right like this, that is, the Fundamental Right of Education is to ensure the basic human right under Article 37 Section 1 of the Constitution. Such a conception of educational right is got a grip on more inclusive meanings than only that of the right to learn, it should be also used the notion including the right to make learn. Besides, while 'the right to receive learn' under Article 37 Section 1 of the Constitution has been considered that it only is one of the social basic right, the education has been existed as one of the natural rights in order to enlighten the human personality and realize the dignity and value of man as the process of human life itself from mankind's origination, this is the right belong to natural right. However, the education was converted to public education since nation had been come into realization and the constitution provided that 'the right to receive education' to warrant this, we can understand that the educational right become a base of social basic right in this way. And in the guarantee of 'the right to receive education', the education is including not only school education but also home education and social education. We also call these educations a lifetime education in total and predict that the school education system will change into a lifetime education system for the future, in addition to; it will be developed toward a lifetime learning society.
Second, I have dealt with the legal character and background of the Fundamental Right of Education, etc. I think that the Fundamental Right of Education should grow out of the abstract idea of right in the past as concrete right. We can find the constitutional basis of the Fundamental Right of Education in the Article 31 of the Constitution and give an example of this the Article 10 and Article 31 of the Constitution as the supplementary stipulation. And related to the educational right as 'the right to receive education', we can understand that the nation which make education and the people who receive education are the subject of education all together, in the relative understanding, the notion of the Fundamental Right of Education becomes better clear, and can achieve the original purposes of education by way of agreement between opposition and conflict of two sides surrounded at the student's right to learn. Third, I deal with the right to learn and the right to receive education. I consider the guarantee of education as the formality of personality, achievement and development through the learning. The education becomes the innate human right in the basis of the thought of modern human right, the education as right, that is, the Fundamental Right of Education become secured as the basic human right laid 'the right to receive education' in the Constitution. The Fundamental Right of Education has developed to right to receive a required education in order to realize the dignity of human, value and the edification of personality in the basis of innate right to learn, according to his or her free will without any limitation and interference by nation or the third party.
Therefore, as the Fundamental Right of Education becomes a public education, according to his or her ability, everyone has the right to receive a free and equal education under the article of the constitution. While the freedom of learning and education is the aspects of civil liberties of right to education, the assurance of educational equal opportunity of 'the right to receive education' is the aspects of social right of educational right.

목차 (Table of Contents)

• 目次
• 제1장 序論 = 1
• 제1절 硏究目的 = 1
• 제2절 硏究範圍 및 方法 = 3
• I. 硏究範圍 = 3
• II. 硏究方法 = 6
• 제2장 敎育基本權의 一般論 = 9
• 제1절 憲法上 敎育基本權의 沿革과 意義 = 9
• I. 敎育基本權의 沿革 = 9
• II. 敎育基本權의 意義 = 24
• 제2절 敎育基本權의 法的 性質과 法的 根據 = 37
• I. 敎育基本權의 法的 性質 = 37
• II. 敎育基本權의 法的 根據 = 45
• 제3절 敎育基本權의 主體와 效力 = 52
• I. 敎育基本權의 主體 = 52
• II. 敎育基本權의 效力 = 53
• 제4절 敎育基本權의 侵害와 救濟 = 57
• I. 立法機關에 의한 侵害와 救濟 = 57
• II. 行政機關에 의한 侵害와 救濟 = 60
• III. 司法機關에 의한 侵害와 救濟 = 61
• IV. 私人에 의한 侵害와 救濟 = 62
• 제5절 學校選擇權 = 63
• 제3장 敎育基本權의 內容 = 65
• 제1절 敎育을 받을 權利와 學習權 = 65
• I. 敎育을 받을 權利 = 65
• II. 學習權과 敎育을 받을 權利와의 關係 = 77
• 제2절 敎育의 機會均等 = 102
• I. 敎育上의 平等 原則 = 102
• II. 敎育的 配慮로서의 能力에 따른 敎育 = 109
• III. 試驗制度에서의 平等 = 113
• IV. 私見 = 115
• 제3절 義務敎育의 無償 = 118
• I. 義務敎育 = 118
• II. 義務敎育의 無償性 = 121
• 제4장 敎育權과 敎育의 自由 = 125
• 제1절 敎育의 自由 = 125
• I. 敎育의 意義 125
• II. 敎育의 理念 = 126
• III. 敎育權의 根據에 관한 學說 = 127
• IV. 私見 = 129
• 제2절 敎育權의 所在 = 135
• I. 國民의 敎育權과 國家의 敎育權 = 135
• II. 國家의 敎育權說과 그 批判 = 136
• III. 憲法과 國家의 敎育權 = 138
• IV. 私見 = 147
• 제5장 結論 = 154
• 參考文獻 = 158
• ABSTRACT = 171