공교육에 대한 국가의 규율권한 - 사립초등학교 영어몰입교육 사건의 법적 쟁점 -

The Korean constitution guarantees people’s right to an education as the natural right and designates the public education system, where the state is obligated to materialize such natural right, as the foundation of education system (Article 31 of the Constitution, Supreme Court Decision 2008Da38288 Decided April 22, 2010). In the public education system, the education is conducted mainly in the form of group education at schools, and the state is entitled to comprehensively regulate the school education to achieve its goals for education, expansion of education and equality of opportunity. The state’s regulation of public education is implemented through manipulating and reassigning curricula, textbooks and teachers. The curricula are established by systematically organizing the school’s educational goals, contents, methods and evaluation. The Elementary and Secondary Education Curricula(“National Curricula”) announced by the Minister of Education prescribe the subjects and number of hours to be taught at each levels of schools, and schools must organize and conduct classes according to the National Curricula prescribed by the state. The textbooks are educational materials containing the contents designed according to the learning contents and standard of accomplishment established by the National Curricula. The state causes students to learn the contents prescribed by the National Curricula by restricting schools to use only the textbooks copyrighted by the state or allowed to pass the authorization and recognition processes. The teachers are the final implementers of the National Curricula who teach the textbook contents to the students. The state strictly controls the qualification for teachers, and in principle, those not licensed as teachers can not teach students in schools. Some of the private elementary schools provide English immersion education where the native English speaker teach English and other classes with the textbooks used in Anglophone areas. Although the National Curricula exclude English from the subjects for 1st and 2nd elementary school graders, such private elementary schools taught English to the 1st and 2nd graders. The educational authority determined that such English immersion education can threaten the foundation of public education systematized by the National Curricula, textbook and teacher, and announced the School Inspection and Guidance Plan for private elementary schools. In a lawsuit related to this matter, the private elementary school claimed that the school inspection and guidance invades the student’s right to learn, parents’ right to teach their children, the private school’s right to freely operate schools and teacher’s right to teach. However, the school inspection and guidance by educational authority is conducted based on the applicable laws within the scope of state’s right to regulate public education, and as long as the private schools are included in the public education system, the rights of each principal agents of education related to English immersion education should be restricted to a certain extent.