학생의 종교의 자유와 종립(宗立)학교의 종교교육 (대상판결：대법원 2010. 4. 22. 선고 2008다38288 전원합의체 판결*)

This thesis analyzes the subject case as to whether a private school founded by (a) religious organization implementing a religious education to mandatorily allocated students pursuant to standardization policy of the High School Equalization Policy (hereinafter referred to the Equalization policy constitutes an invasion of students' freedom of religion. Moreover, if the invasion commits an illicit activity, the subject case explains what requirements of the illicit activity are. In this subject case, the majority opinion decided that current mandatory school assignment system pursuant to the High School Equalization Policy is not unconstitutional. Because the policy did not exceed the limit of the fundamental rights of students' and school's freedom of religion, considering not only our Constitution Law has founded the public education system as the basis of the educational system, but also half of our high school students attend private school. The majority opinion also ruled that the conflicting basic rights between private school's freedom of religious education and students' passive freedom of religious activity and confession occurring problems by the equalization policy should be resolved through the interpretation for practical harmony between two basic rights with sustaining its function and effect. Furthermore, in the consideration of the Constitution and regulations about education, the purpose of standardization policy of high schools, the significance and implemental methods of education's public function and public education system, as well as the limitation of an incorporated educational institution's freedom of religious education before other values of the Constitutional, an incorporated educational institution has limits on its fundamental rights within the scope to respect the student's basic rights preparing appropriate protection, even though the institution has freedom of religion and freedom of operation, thus the institution's has good effects to our society. In case where a religiously founded school implements a religious education in the form of denominational education for specific religious tenets as school's establishment ideals against students who entered the school regardless of his/her religious belief pursuant to the Equalization policy beyond the educational scope of universal refinement education with religious neutrality, a court should consider the total specific circumstances such as religious education's specific contents and degree, continuity of religious education, sufficient explanation to students and consent from the students as to religious education, students' attitude against religious education or alternative subjects that students may choose freely without concerns about disadvantage or they may refuse to participate at religious education in light of society's total sound common sense and legal sentiment. Thereafter, if a religious education exceeds tolerance limits, it is determined as unlawful. This subject case is the first decision established the requirements of illegal act, in case of private school's religious education beyond the tolerance limit, when two conflicting basic rights exist between an incorporated educational institution which is restricted to choose students pursuant to the equalization policy and students who also have a limitation on school choice rights. Moreover, this subject decision ruled that if a private school enforces religious education exceeding its own limit, it could be established liability for damages. This subject case makes clear what necessary measures are needed when a private school implements religious education, thus the decision provides an objective standard in order to solve religious educational conflicts. Further, the meaningful decision guarantees not only students' freedom of religion, but also a private school's right to implement religious education in case of offering supplemental measures. Ultimately the decision provides a practical harmony between two parties' fundamental rights with balancing of their interests.