대학교수의 신분보장과 위헌심사 ― 계약임용제와 기간임용제 대학교수의 재임용과 관련하여 ―

In particular, the Constitution should be seen as proclaiming the legalism of the education institution or the legalism of the status of teachers to strengthen the status of teachers, so the guarantee of the status of professors should not be regarded as just one of Schmitt's institutional guarantees, nor should it be viewed as being left to the unlimited right to form legislation. In light of the purpose of the constitutional provisions that require the status of teachers to be determined by law and the nature of the job of education performed by teachers, whether or not a university professor who has expired is not a discretionary act of a school corporation or an appointment holder, but a binding act that is obligated to be reappointed unless there are obvious defects in ability or quality. In order for private universities themselves to enjoy academic research, academic activities, and professors' freedom independently of school corporations, it is essential that academic freedom or university freedom is properly guaranteed. For this, the university's autonomy institution should be systematically guaranteed. Here, the guarantee of the ‘university's autonomy institution’ as an objective institution of university freedom means an institutional guarantee as a means to effectively guarantee academic research and academic activities in universities. The ‘right not to be unfairly deprived’ of the professor's status, which is recognized in the interrelationship with academic freedom, corresponds to the right to defense as a right to demand that the subject of the right not be deprived of a certain legal status. If so, the principle of ‘minimum restriction’ should be applied, not ‘minimum guarantee’. The criteria for review at this time should be the principle of prohibition of excess, and if so, the review that broadly recognizes the discretion of legislators should be changed.