사립학교에서 종교교육의 자유와 학생의 신앙의 자유

Freedom of religion guaranteed by Art. 20 Para. 1 of Korean Constitution comprises three elements: freedom of faith, freedom of confession of faith, and free exercise of religion. The respective elements have both active and passive aspects. The passive freedom of religion guarantees the freedom to refuse religious education, the freedom not to confess one's faith and the freedom not to participate in religious activities that one does not want to. The active freedom to exercise religion covers the freedom of religious education. Meanwhile the principle of educational independency prescribed in Art. 31 Para. 4 also guarantees the establishment of religion-based private schools and the freedom of religious education. The freedom of the religion-based private schools to educate students in religion may collide with the freedom of the students to refuse religious education. If this type of collision of constitutional rights occurred between purely private parties, it could be solved in accordance with the character of the relation between them(eg. admission contract to a school). Middle and high school students in the urban regions in Korea where the "equalization policy" applies, however, cannot voluntarily choose the school to attend, but the school district allocates students without distinction to public and private schools including religion-based schools. Therefore the collision of rights is caused by the government. The Constitutional Court, as well as the Supreme Court, applies either "the doctrine of hierarchy of constitutional rights" or "the docrine of practical harmony" to solve the problem of collision between constitutional rights. The former cannot be applied here, because those rights which collide are the same freedom of religion. The latter requires that a harmonious way be sought to allow both colliding rights to show maximum effectiveness. According to the opinions of both Courts, the point of contact which harmonizes the colliding rights is to be found in the factual context where those rights apply. From my perspective, the point varies with the fact whether the students have the right to choose schools. If the students have such right, the point of contact might be the voluntariness of entrance to the school. In this case, the admission contract comprehends the agreement to comply with the school regulations including religious education, while the general educational law applies. Therefore I believe that religion-based private schools in the "non-equalzed school distrcts" may educate the students in specific religion and require them to participate in compulsory rituals. In the "equalized school district", however, the students' passive religious freedom should be respected more and the private schools enjoy only qualified freedom of religious education. The private schools cannot educate the students for the purpose of training religious persons or of missionary work in the narrow meaning. On the other hand the private schools may educate their students in religion as a course of education for a whole person. But the schools may not impose upon the students compulsory course of specific faith. If the schools are to open a religious subject, they should also open alternative elective courses. The students should never be obliged to participate in religious ceremonies. In the long term the school lottery system should be abolished. In the short term the school district should allow the students to exclude schools established on specific faith or to be transferred to other schools. The more right of choice the students have, the more right of religious education the schools have.