학교와 교육법

머리말 ·························································································3

제1장 교육법의 기초 ·············································································11
제1절 법령의 체계와 교육법 ······························································11
1. 법령의 체계 ············································································11
가. 법령의 구성요소 ··································································11
나. 장ㆍ절의 구분과 조ㆍ항ㆍ호ㆍ목 ················································13
2. 교육법의 법원(sources of law) ·······················································15
가. 교육법의 법원 ···································································· 15
나. 기본법으로서 ?교육기본법?······················································22
제2절 법의 해석과 적용 ··································································· 27
1. 법해석의 기초 ·········································································· 27
가. 법해석의 필요성과 일반원칙 ·····················································27
나. 법령 용어 ·········································································30
2. 기간 계산법 ············································································34
3. 법원과 헌법재판소의 역할 ···························································· 37
가. 법원 ··············································································· 37
나. 헌법재판소 ········································································38

제2장 국가와 교육형성권 ········································································43
제1절 교육형성권의 양면성 ································································43
1. 광범위한 교육형성권 ···································································43
2. 교육형성권의 한계 ···································································· 44
가. 교육제도ㆍ운영의 헌법상 기준 ··················································46
나. 다른 기본권과 균형ㆍ조화 ·······················································47
다. 민주성의 기준 ···································································· 51
제2절 국가의 교육권한에 관한 법적 판단 ··············································52
1. 사교육 규제 ············································································52
가. 사교육에 대한 국가의 권한 ······················································53
나. 사교육의 가치에 대한 관점 ······················································55
다. 가부장적 보호주의와 국가 규제 ·················································57
라. 공교육과 사교육의 영향 관계 ···················································60
2. 사립학교에 대한 규제의 한계 ························································63
3. 지방자치단체의 교육형성권 ···························································70
가. 교육조례 ···········································································70
나. 교육청의 정책 재량권 ····························································77
4. 교육제도 법정주의에서 기본적인 사항 ···············································84
5. 대학의 자율성과 국가의 재량권 ······················································86

제3장 교육받을 권리와 평등권 ································································93
제1절 인간의 교육과 평등 ·································································93
1. 교육받을 권리 ··········································································93
2. 평등과 불합리한 차별의 금지 ························································97
제2절 교육받을 권리의 법적 판단 ·······················································99
1. 학교 선택권과 참여권 ·································································99
2. 공교육제도와 개인의 교육적 요구 ··················································107
3. 평등권과 불합리한 차별 ·····························································116
가. 특수교육기회 ·····································································116
나. 남녀평등교육 ·····································································121
다. 학교의 자율성과 학생의 평등권 ················································124
라. 적극적 보상조치 ·································································132

제4장 학교의 교육책임 ·········································································143
제1절 교육책임의 법적 논리 ·····························································143
1. 교육책임의 구조 ······································································143
2. 교육책임의 수준과 한계 ·····························································148
제2절 교육책임의 법적 판단 ·····························································150
1. 수업부실ㆍ학업부진 ···································································150
2. 교육여건 조성 ········································································161
3. 국가 및 지방자치단체의 책임 ·······················································167

제5장 학생안전사고 ·············································································177
제1절 학생안전사고와 법적 책임 ························································177
1. 학생안전사고의 유형과 예방 ·························································177
가. 학생안전사고의 유형 ····························································177
나. 학생안전사고의 예방 ····························································179
2. 학생안전사고에 대한 책임 ···························································180
가. 법적 책임의 유형 ································································180
나. 손해배상책임의 법리 ····························································184
다. 학생안전사고 관련자의 손해배상책임 ··········································186
3. 학교안전공제회 ·······································································191
제2절 손해배상책임의 법적 판단 ·······················································194
1. 학교의 손해배상책임 판단기준 ·······················································194
2. 학교의 설립ㆍ경영자 책임의 요건 ··················································221
3. 가해학생 부모의 책임 ································································225
4. 학교시설물 설치ㆍ보존상 하자 책임 ················································226
5. 학교안전공제회의 보상범위 ··························································231

제6장 학생의 의사표현 ·········································································235
제1절 학생의 의사표현의 자유 ··························································235
1. 독자적인 인격체로서 표현의 욕구 ···················································235
2. 학생의 의사표현의 제한 ·····························································237
제2절 학생의 의사표현과 보호범위 ·····················································239
1. 교육과정과 무관한 의사표현 ·························································239
가. 교내에서 개인적 의사표현 ······················································239
나. 교내 시위ㆍ집회 ·································································242
다. 인터넷 사이트에서 학교 비판 ··················································252
2. 교육과정 영역안의 의사표현 ························································256

제7장 학생의 사생활 ············································································261
제1절 학생의 사생활 보호 ································································261
1. 생활공간으로서 학교 ··································································261
2. 사생활 보호의 법적 구조 ····························································263
제2절 학생 사생활의 보호범위 ··························································268
1. 압수ㆍ수색 ············································································268
2. 사생활 정보 보호 ····································································289
제3절 학생의 용의와 복장 ·······························································303
1. 두발ㆍ화장 ············································································305
2. 복장ㆍ장신구 ·········································································310

제8장 학생 징계조치 ············································································317
제1절 학생 징계조치의 법적 논리 ·······················································317
1. 학생생활규범의 핵심가치 ·····························································317
2. 학생징계 ··············································································320
3. 학교폭력 가해학생 조치 ·····························································321
제2절 학생 징계조치와 법적 판단 ······················································325
1. 징계조치의 종류와 사유 ······························································325
2. 교육적 자유재량과 한계 ·····························································333
3. 적법절차의 내용과 수준 ·····························································344
4. 징계권의 행사와 불법행위책임 ······················································355

제9장 체벌과 아동학대 ·········································································359
제1절 위법한 지도수단과 법적 책임 ····················································359
1. 지도수단의 규제 ······································································359
2. 체벌과 교원의 형사책임 ·····························································360
3. 교육적 훈육과 아동학대 ·····························································361
제2절 체벌의 위법성 판단기준 ··························································364
1. 사회관념상 타당성 ····································································364
2. 교육상 필요 및 체벌의 불가피성 ····················································372
3. 체벌의 방법과 정도 ··································································374
4. 체벌 시 주의의무 ····································································376
제3절 아동학대에 관한 법적 판단 ······················································377

제10장 교원의 의사표현 ·········································································393
제1절 의사표현의 자유와 교원 ··························································393
1. 의사표현의 자유와 민주주의 ·························································393
2. 교원의 지위와 의사표현 ·····························································397
제2절 교원의 의사표현의 보호범위 ·····················································399
1. 비판적인 내용과 명예훼손ㆍ모욕 ····················································399
가. 명예훼손죄 ·······································································400
나. 모욕죄 ············································································405
2. 성실ㆍ품위유지 의무 ·································································409
3. 집단행위ㆍ정치활동 금지 의무 ······················································419

제11장 교원의 교육의 자유 ·····································································435
제1절 교육의 자유의 근거와 한계 ·······················································435
1. 교육의 자유의 법적 근거 ·····························································435
2. 교육의 자유의 한계 ··································································436
제2절 교육의 자유의 보호범위 ··························································438
1. 교육과정과 교과서 ····································································438
가. 교육과정 설계 ···································································438
나. 교육의 자유와 종교의 자유 ·····················································440
다. 교과서ㆍ수업자료 ································································443
2. 수업활동과 교육방법 ·································································445
3. 시험과 평가 ··········································································453
4. 교육의 자유와 저작권 보호 ·························································458

제12장 교원 불이익처분 ·········································································463
제1절 불이익처분의 유형 ·································································463
1. 당연퇴직 ···············································································464
2. 직권면직 ··············································································470
3. 직위해제 ··············································································472
4. 징계 ···················································································473
제2절 교원의 비위행위와 법적 판단 ····················································476
1. 징계사유의 존재 여부 ································································476
가. 신분 보유 중 징계사유 ·························································477
나. 징계시효 ·········································································479
다. 적법한 징계사유 ·································································481
2. 비위행위 유형별 법적 판단 ··························································483
가. 학사관리 비위 ···································································483
나. 성희롱ㆍ성추행 등 성(性) 비위 ·················································485
다. 뇌물 등 청렴 관련 비위 ························································489
라. 사생활과 품위 손상 ·····························································495
3. 징계 과정과 절차의 하자 ····························································496
제3절 불이익처분의 구제절차 ···························································502
1. 교원소청심사제도 ·····································································502
2. 소송을 통한 구제절차 ································································505

제13장 학교 고용관계에서 차별 ·······························································507
제1절 공무담임권과 차별금지 ····························································507
1. 차별금지와 심사척도 ··································································508
2. 능력주의와 고용보호 ·································································511
제2절 고용관계에서 차별의 법적 판단 ·················································513
1. 차별의 합리성 여부 ···································································513
가. 성별에 따른 차별 ································································513
나. 지역가산점에 따른 차별 ························································514
다. 기간제 임용에 따른 차별 ·······················································516
라. 연령에 따른 차별 ································································522
2. 교직원 사이 성희롱ㆍ성추행과 차별 ················································525
3. 국가유공자 및 장애인 등 고용보호 ·················································532

참고문헌 ·················································································536
찾아보기 ·················································································552