「학교폭력예방 및 대책에 관한 법률」의 법적 문제

School and violence are words that don't fit together at all, but today school violence has become too familiar and one of the biggest social problems in our society. To solve such social problems, the Act on the Prevention and Countermeasures against Violence in Schools (hereinafter referred to as the School Violence Prevention Act) was enacted in 2004, which mainly focuses the establishment of school violence-related institutions, the preparation of a legal framework for guiding and educating perpetrators, and protection of victims of school violence. However, the School Violence Prevention Act has a fundamental problem in that it attempts to establish a uniform law code for the education sector that should be guaranteed independence and professionalism of education guaranteed by the Constitution, unlike the legislative intent to prepare a legal system for the prevention of school violence. In addition, the School Violence Prevention Act excessively expands the scope of ‘school violence’ resulting in new legal problems, including excessive legal intervention in education and serious violation of school rights. From the point of view of ensuring independence and professionalism of education, it is reasonable to leave the problem of schools to the education field first, and the law should be secondary. In that respect, the School Violence Prevention Act needs to be improved, and its direction is as follows. First, it is necessary to limit the scope of school violence under the School Violence Prevention Act to clarify the legal systemic relationship between criminal law system as the basis for criminal punishment of violence and the Elementary and Secondary Education Act as the basis for student punishment in school. Second, legal systems need to be improved to enhance the effectiveness of measures against perpetrators of school violence, and in particular, the current law requires consideration of the normative justification of written apology as the disposal of schoolmasters. Third, there is a need to rectify legal problems arising from the dualization of the appeals process under the current law in relation to the disobeying procedure. Finally, in the case of complaints about the schoolmasters' disposal of perpetrators in relation to school violence, there is currently a legal difference between public and private schools, which does not seem appropriate. Therefore, given that the nation's education system is basically a public education system despite the distinction between public and private schools, it is reasonable to allow the measures taken by private schoolmasters to be subject to administrative litigation by acknowledging the disposition stipulated in the Administrative Procedure Act.