사립학교이사장 친족의 교장취임 배제의 위헌성

The major purpose of the study is to examine why the exclusion of the chief director's relatives from the private school principal and the private university president in the reauthorized Private School Act is unconstitutional. The major findings are as follows. First, this exclusion violates the equal protection clause because it is arbitrary discrimination on the basis of social status in that the chief director's relatives do not necessarily have no the principal's and the president's competences, many of them have been socially recognized as competent principals and presidents, and they can raise educational funding from the judicial private school person easily. Second, the exclusion of the chief director's relatives from the private school principal and the private university president violates the practicing principal's and the practicing president's freedom of vocational choice for the following reasons. First, the separation of school/ university management from academic affairs is not a valid legislative purpose because the judicial private school person should involve in academic affairs for embodying the schoo/university vision. Further, the exclusion of the chief director's relatives from the private school principal and the private university president may discourage public interest since increasing the democracy of the private school/university management is influenced by the private school principal's and the private university president's leadership, organizational culture and climate, etc., this leadership is influenced by his or her personality, not social status, and the principal and the president can affect student performance. Moreover, there are other ways to increase the democracy of the private school/university management, such as democratizing its governance structure and decision-making system. Finally, the exclusion of the chief director's relatives from the private school principal and the private university president damages him or her very seriously while there is little public interest obtained from this exclusion. Third, the exclusion of the chief director's relatives from the private school principal and the private university president violate the judicial private school person's right to autonomous personnel management resulting from educational autonomy and college autonomy because this exclusion does not contribute to realizing the essence of education and cannot satisfy the internal restrictions for educational autonomy and the constitutional requirements for restricting educational autonomy and college autonomy. Last, no provision to protect the practicing private school principal's and the practicing private university president's expectations for continuing the private school principalship and the private university presidentship when the reauthorized Private School Act is effective violates the confidence-protection principle for three reasons. First, the practicing private school principal and the practicing private university president have lost their justified expectations for continuing the private school principalship and the private university presidentship because of this reauthorization. Next, public interest achieved by the exclusion of the chief director's relatives from the private school principal and the private university president is not bigger than the practicing private school principal's and the practicing private university president's lost private interest. Finally, the practicing private school principal and the practicing private university president cannot expect this reauthorization during their employment.