체벌의 본질과 헌법적 한계 — 미국의 체벌 관련판례의 분석을 중심으로 —

In our case, school corporal punishment causes social issues constantly in spite of the fact that the international community clarified that corporal punishment infringed upon human rights, and that almost every industrialized society refused to use corporal punishment as an educational tool. The purpose of this writing is to get implication deduction from a study on the way to handle corporal punishment from a constitutional perspective. As of 2012, eighteen states in the U.S. still approve to inflict corporal punishment despite a number of researches indicating that corporal punishment creates very serious risks to children. There are differences in discussion about corporal punishment between Korea and the U.S. in two aspects. One is that only corporal punishment inflicted in public schools comes to questions. So corporal punishment used in private schools does not bring up a problem of violating human rights, but committing a tort. The other is that they see corporal punishment as a matter of law in the U.S. This viewpoint cast a big implication on Korean attitude toward corporal punishment which sees corporal punishment as a matter of pure educational policy or universal human rights. We can not deny that corporal punishment, of course, is tinged with educational policies. And corporal punishment necessarily infringe on the constitutional fundamental rights including the dignity of man and personal liberty, etc. In this sense, we need to harmonize the perspectives on the corporal punishment of Korea and the U.S. Corporal punishment, even though it can be said to violate fundamental rights guaranteed by the Constitution, seems to be still allowed under the principle of proportionality stipulated in the article 37 section 2 of Korean Constitution. So it is time to decide if corporal punishment is allowed distinctly or not in the context of education.