휴대전화 사용 제한 등 학생생활규정의 법적 성격과 개선방안 - 국가인권위원회 주요 결정례를 중심으로 -

There exists a gap between the content of student codes of conduct as applied in school settings and the decisions of the National Human Rights Commission of Korea (NHRCK). Restrictions on the possession and use of mobile phones and electronic devices are one such example. Similarly, long-standing issues frequently cited as infringements of students’ fundamental rights—such as regulations on hairstyle and dress, inspection of personal belongings, and bans on commuting to school by motorcycle—also reveal discrepancies between the NHRCK’s decisions and the content of student codes of conduct. The ambiguity stemming from the legal nature of middle and high school rules—understood as autonomous regulations—differences in perception among the three key groups in the school community (students, teachers, and parents) regarding restrictions on students’ fundamental rights, the absence of discussion on whether the opinion-gathering procedures under school rules (hereinafter referred to as “school regulations”) can confer legitimacy on restrictions arising from student codes of conduct, the relationship between student rights and teachers’ authority viewed through a dualistic lens, and the lack of concrete alternatives from stakeholders such as the Ministry of Education, metropolitan and provincial offices of education, policy research institutions, the NHRCK, and civil society—all contribute to perpetuating this gap. For the purposes of this paper, “human rights” refers to the universal and inherent rights of human beings grounded in natural law and instruments such as the Universal Declaration of Human Rights, while “fundamental rights” refers to human rights concretized and codified in the Constitution of the Republic of Korea. Considering the familiarity of the term “student human rights” in common usage, and given that this paper does not differentiate between “human rights” and “fundamental rights” in context, the two terms will be used interchangeably. This study ultimately seeks to propose measures to bridge the existing gap. To that end, first, it will examine the legal nature of student codes of conduct that students are required to follow and the remedies available when such codes infringe upon fundamental rights. Second, it will analyze the legal nature of NHRCK decisions and trends in its rulings related to student codes of conduct. Third, it will present analyses of representative cases. Fourth, it will offer critiques of NHRCK decisions and propose improvement measures—including key issues that should be considered or interpreted before the enactment or revision of student codes of conduct—and conclude with a synthesis of these findings.