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The Review on the Ordinance Regarding Students' Human Rights

  • Public Land Law Review
  • Abbr : KPLLR
  • 2011, 52(), pp.559-588
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

JOUNG YOUN BOO 1

1원광대학교

Accredited

ABSTRACT

There are strong arguments for the prohibition of corporal punishment in schools. Gyeonggi-Do has legislated “The Gyeonggi-Do Ordinance on students' human rights”. Other provincial governments such as Chungnam, Gangwon, Gwangju, Jeju-Do as well as Seoul are also trying to enact an ordinance which forbids corporal punishment in schools. The preceding studies regarding corporal punishment is mainly focused on problems of pedagogy or criminal law. It is certain that corporal punishment has many problems related to pedagogy or criminal law. In addition to these problems, corporal punishment needs to be researched from the view of public law. Now, some of the proponents who are superintendents of education or members of the board of education are trying to prohibit corporal punishment by enacting a municipal ordinance. Therefore, the limits of the ordinance are asked to be studied. This study analyzed “The Gyeonggi-Do Ordinance on students' human rights”, finding what kind of suits are available and applying ‘the principle of legal administration’. This study reviewed ‘the suit on unconstitutional or illegal administrative decrees, regulations’. It also looked at ‘the administrative appeal’ and ‘the constitutional petition’ as the means of procedural laws. This study supports a theory which construes the objects of the administrative appeal on delegated legislations in a limited sense. Supporting the theory is a result of considering prerequisites for the constitutional petition. Korean constitutional act has two requirements to suppress cases of the constitutional petition. First, it excludes the judgments from courts. Second, if any procedures of remedies are available by other laws, no one shall request without having taken all these procedures. This study regards ‘the executively delegated legislation’ as an object of the constitutional petition. The executively delegated legislation does not have any articles regarding a specified person or case. It could infringe on people's rights without administrative functions in some cases. “The Gyeonggi-Do Ordinance on students' human rights” is a municipal ordinance. Therefore this study examines the limits of legislative power belonging to a local autonomy. This study agrees with the theory which insists that a principle - only the acts of congress can restrict people's rights - does not belong to ‘the principle of legal administration’. This study sees the essence of a principle - the national decisions that take the form of the act are more superior than other forms ― as a problem of compatibility. The specific standards for compatibility are ‘purpose’ and ‘object’. If a municipal ordinance infringes on people's rights, the compatibility of municipal ordinance with acts cannot be accepted in principle. However if the municipal ordinance was entrusted with legislative power by the acts, it could be exceptionally compatible with them. At this time, comprehensive entrustment is enough as a degree of entrustment. Finally, this study expresses that it is difficult to find any problems in “The Gyeonggi-Do Ordinance on students' human rights” after applying the above opinions.

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