학생체벌의 정당성에 대한 법률적 고찰

There are strong arguments for the prohibition of corporal punishment in schools lately. The preceding studies regarding corporal punishment is mainly focused on problems of pedagogy or Criminal Law. Seoul Metropolitan Governmen, Seoul has legislated "The Seoul student rights ordinance". Seoul became the third municipality to pass a students' rights ordinance after Gyeonggi Province and Gwangju in South Jeolla Province. The student rights ordinance will bring a big change in Korean schools and education. But, as soon as Seoul Metropolitan Government, Seoul passed an ordinance on students' human rights, The Education Ministry filed a suit to the Supreme Court to seeks injunction on student rights ordinance. As a result, the ordinance could trigger confusion in school The Supreme Court and The Constitutional Court has maintained that it may be justifiable if it is properly used an ultima ratio for educational purpose of correcting. The Elementary and Secondary Educational Law §18 and its Enforcement Ordinance §31⑧ provide articles, which allow 'guidances inflicting bodily pains' if they are inevitable for the purpose of education. According to interpretation of these articles, indirect corporal punishment of principal is act which is conducted in accordance with Acts and indirect corporal punishment of teacher is act which does not violate actions by Acts and subordinate statutes or the social rules. The Article 20 of our Criminal Law prescribes that an act which is conducted in accordance with Acts and subordinat statutes, or in pursuance of accepted business practiecs, or other action which does not violate the social rules shall not be punishable, so that it takes the student corporal punishment on the dimension whether or not it could be considered as an exercise of the right to discipline as a type of "actions by Acts and subordinate statutes". As above, the student corporal punishment shall be used as the last means by educational needs, making the student understanding its educational meaning in separate places where classmates cannot witness with limited instruments and number of times, on relatively safe point for infliction, with the teacher having educational purpose. A violation to these requirements can be neither considered to have socially accepted objective legitimacy unless there are any special circumstances, nor permitted as the reason of justification under the Criminal Law. In conclusion, corporal punishment must not be allowed. Even if indirect corporal punishment is allowable, there should be limits as to how, and degree to which, it is carried out.