교육법의 이해와 실제

발간사 ················································································································· 2

제1장 교육법 개관과 교육법학(고 전) ··································································· 13
제1절 교육법의 이해 ··························································································· 13
1. 출현 배경과 법제화의 한계 ·············································································· 13
2. 교육법의 역사적 전개 ······················································································ 15
3. 기본 용어 및 기초 개념 ··················································································· 16
4. 교육법의 기본 원리 ························································································ 18
제2절 교육법의 체계와 특징 ················································································· 22
1. 성문 교육법의 종류 ························································································· 22
2. 교육법의 불문법적 사례 ··················································································· 26
3. 교육법의 체계 ································································································ 28
4. 교육법의 특징 ································································································ 30
제3절 교육법학의 이해와 한국의 교육법 연구 ························································ 31
1. 교육법학의 개념과 전개 ··················································································· 31
2. 교육법학의 학문적 성격 ··················································································· 34
3. 한국의 교육법 연구 ························································································· 37

제2장 헌법과 교육기본권의 보장(허종렬) ······························································ 45
제1절 헌법의 주요 내용과 교육헌법 ······································································ 45
1. 현행 헌법의 주요 내용과 논의 범위 ·································································· 45
2. 교육헌법의 범위 ····························································································· 46
3. 교육헌법 개정사 ····························································································· 47
4. 현행 교육헌법 조문들의 향후 개헌론 ································································· 48
제2절 교육기본권의 보장 체계와 개별 교육기본권의 구체적 보장 ····················· 49
1. 헌법상 교육기본권 보장 체계 ··········································································· 49
2. 교육기본권 보장 체계에서의 인간으로서의 존엄과 가치, 행복추구권 ··············· 53
3. 개별적 교육기본권의 구체적 보장 ····································································· 55
4. 교원의 교육권 ································································································ 68
제3절 국가의 교육기본권 보장 의무와 교육에 관한 권한 ···································· 72
1. 국가의 교육기본권 보장 의무 ··········································································· 72
2. 교육제도 법정주의의 취지와 교육에 관한 국가의 형성적 권한 ························· 73
3. 국가에 의한 교육기본권의 제한과 한계 ······························································ 75

제3장 교육당사자의 법적 지위(정필운) ································································· 81
제1절 학생ㆍ학부모의 권리와 의무 ······································································· 81
1. 학생의 권리와 의무 ························································································· 81
2. 부모의 권리와 의무 ························································································· 84
제2절 국가ㆍ교원의 권리와 의무 ··········································································· 87
1. 국가의 교육 과제 ···························································································· 87
2. 교원의 권리와 의무 ························································································· 90
3. 교원단체 ········································································································ 93
제3절 학교(사학, 대학)와 학교운영위원회 ······························································ 98
1. 개관 ·············································································································· 98
2. 학교의 법적 지위 ···························································································· 99
3. 국ㆍ공립학교의 법적 지위 ················································································ 99
4. 사립학교의 법적 지위 ······················································································ 99
5. 대학의 법적 지위 ··························································································· 100
6. 학교운영위원회 ····························································································· 101

제4장 교육에 대한 국가 및 지방자치단체의 권한과 책임(강기홍) ···················· 105
제1절 교육주체의 권한과 책임 ············································································ 105
1. 교육주체와 객체 ··························································································· 105
2. 입법부 및 사법부와 관계에서 교육주체의 권한 ················································· 106
3. 교육주체의 책임 ··························································································· 107
제2절 국가의 교육권한과 책임 ············································································ 107
1. 국가교육위원회 ····························································································· 107
2. 교육부 ········································································································· 109
3. 국가교육주체 간 상호작용 ·············································································· 112
제3절 지방자치단체의 교육권한과 책임 ································································ 113
1. 교육감 ········································································································· 113
2. 교육감 협의체 ······························································································ 115
3. 시ㆍ도 의회 ································································································· 115
4. 지방교육행정협의회 ······················································································· 117
5. 교육장 ········································································································· 117
6. 학교의 장 ···································································································· 119
7. 지방교육주체 간 상호작용 ·············································································· 123
제4절 국가와 지방교육주체 간 협력과 갈등의 해소 ············································ 125
1. 국가교육을 위한 연장된 팔로서의 지방교육기관 ················································· 125
2. 교육사무 집행에 따른 갈등 ············································································ 126
3. 갈등 해소의 방법과 절차 ··············································································· 127

제5장 교육제도 법정주의(이형석) ········································································· 135
제1절 교육제도 법정주의의 개관 ········································································· 135
1. 교육제도 법정주의의 연혁 ·············································································· 135
2. 교육제도 법정주의의 헌법적 의미 ··································································· 136
제2절 교육제도 법정주의의 내용 ········································································· 140
1. 교육제도 법정주의 ························································································· 140
2. 교육재정 법정주의 ························································································ 157
3. 평생교육제도 법정주의 ·················································································· 161
4. 교원지위 법정주의 ························································································ 164
5. 소결 ············································································································ 171
제3절 교육제도 법정주의 관련 사안 분석 ····························································· 172
1. 교원지위 법정주의의 의의 ·············································································· 172
2. 교원지위 법정주의의 내용 ·············································································· 173
3. 구 사립학교법 조항의 교원지위법정주의 위배여부 ············································· 173

제6장 평생교육과 직업교육(이수경) ····································································· 179
제1절 평생교육과 법 ························································································· 179
1. 평생교육의 개념 ··························································································· 179
2. 평생교육의 법적 근거 ···················································································· 179
3. 평생교육의 실제 ··························································································· 182
제2절 직업교육과 법 ························································································· 187
1. 직업교육의 개념 ··························································································· 187
2. 직업교육의 법적 근거 ···················································································· 188
3. 직업교육의 실제 ··························································································· 189
제3절 교육과 국가인적자원개발 ·········································································· 194
1. 국가인적자원개발의 개념 ··············································································· 194
2. 교육과 국가인적자원개발의 관계 ····································································· 195
3. 교육과 국가인적자원개발의 법적 근거 ····························································· 196
4. ｢인적자원개발 기본법｣의 내용 ········································································ 197

제7장 교육과정 및 학생평가와 교육법(김 용) ···················································· 201
제1절 교육과정행정의 구조와 법 체계 ································································· 201
1. 교육과정행정의 틀 ························································································ 201
2. 교육과정 편성권 ··························································································· 203
3. 국가 교육과정 ······························································································ 205
제2절 교과서와 수업 ························································································· 207
1. 교과서와 법적 구조 ······················································································· 207
2. 교과서 채택 및 사용 ····················································································· 210
3. 교사의 수업의 자유와 제한 ············································································ 211
제3절 시험과 학생 평가 ····················································································· 214
1. 시험과 법치주의 ···························································································· 214
2. 학생 성적 평가의 기본 원칙 ··········································································· 216
3. 시험 시행과 법적 문제 ·················································································· 219

제8장 교육재정과 교육법(하봉운) ········································································· 223
제1절 교육재정의 개념 ······················································································· 223
1. 교육비 분류 및 교육재정의 개념 ······································································ 223
2. 교육재정 관련 헌법정신: 교육재정 법정주의 ······················································ 225
제2절 교육재정법제의 형성과 발전 ······································································ 227
1. 교육재정법제의 체계와 구조 ············································································ 227
2. 교육재정법제의 주요 내용 ··············································································· 228
제3절 학교예산회계 제도 ···················································································· 251
1. 단위학교의 재원 ··························································································· 251
2. 학교예산회계 제도 운영 현황 ········································································· 252
3. 학교 재무관리 원칙과 주요 쟁점 ····································································· 254

제9장 교육시설 및 환경과 법(이덕난) ································································· 263
제1절 교육시설의 개념 및 범위 ·········································································· 263
1. 교육시설의 정의 ··························································································· 263
2. 교육시설의 범위 ··························································································· 264
제2절 교육시설 법령의 영역 및 체계 ···································································· 266
1. 교육시설 법령의 영역 ···················································································· 266
2. 교육시설 법령의 체계 ···················································································· 267
제3절 학생수용계획과 학교 설립 절차 ·································································· 269
1. 초ㆍ중등학교 설립 책무 및 학생수용계획 ························································· 269
2. 학교 설립 절차 및 학교용지의 확보 ································································ 270
제4절 학교시설사업 특례 및 학교복합시설 ··························································· 273
1. 학교시설사업의 촉진 ····················································································· 273
2. 학교복합시설의 설치 ····················································································· 273
제5절 교육시설의 시설ㆍ설비 기준 ······································································ 276
1. 교육시설 설치ㆍ운영의 기본 원칙 ··································································· 276
2. 학교 설립 시 시설 기준 ················································································ 277
제6절 교육시설의 안전 및 유지관리 ···································································· 278
1. 교육 및 시설의 안전ㆍ관리 관련 법령 체계도 ···················································· 278
2. 교육시설안전사고의 유형 및 사례 ··································································· 280
3. 교육시설의 안전관리 및 유지관리 ···································································· 281
제7절 교육환경의 보호 ······················································································ 284
1. 교육환경과 교육환경권 ·················································································· 284
2. 교육환경평가 ································································································ 286
3. 교육환경보호구역 및 금지행위 ········································································ 287

제10장 학생인권의 증진(전제철) ········································································· 297
제1절 학습권의 보장 ························································································· 297
1. 교육을 받을 권리 ·························································································· 297
2. 능력에 따른 교육을 받을 권리 ········································································ 299
3. 균등하게 교육을 받을 권리 ············································································ 301
4. 학교 선택권(고교 평준화 위헌론) ···································································· 303
제2절 학생 인권의 보호 ····················································································· 305
1. 체벌의 정당성 여부 ······················································································ 305
2. 학생의 표현의 자유 ······················································································· 308
3. 학생의 사생활 보호 ······················································································· 310
제3절 학생인권조례 ··························································································· 313
1. 학생인권조례 현황 ························································································ 313
2. 학생인권조례와 관련한 논란 ··········································································· 314

제11장 교원과 교권(김학추) ·············································································· 319
제1절 교원의 개념과 관계 법률 ·········································································· 319
1. 교원의 개념과 유사한 교육직원의 차이점 비교 ················································ 319
2. 교원의 관계 법률 ·························································································· 323
3. 교권의 개념과 관련 법률 ··············································································· 324
제2절 교원의 교육권 ························································································· 329
1. 교장의 지도ㆍ감독권 ····················································································· 330
2. 교감의 교육권 ······························································································ 332
3. 수석교사의 교육권 ························································································ 332
4. 교사의 교육권 ······························································································ 333
제3절 교원의 법적 지위와 교육활동 보호 ···························································· 336
1. 교원의 법적 지위 ·························································································· 336
2. 교육활동 보호 ······························································································ 339
3. 교육활동 보호 제도 ······················································································· 341
제4절 교권 보장과 침해구제 ··············································································· 344
1. 교권조례 및 조례안에 나타난 교권보장 ···························································· 345
2. 교원소청심사제도와 사법쟁송 ········································································· 349
3. 교원소청심사위원회와 소청절차 ······································································ 351

제12장 학교폭력예방 및 대책(김갑석) ··································································· 357
제1절 학교폭력의 의의 ······················································································ 357
1. 학교폭력의 법적 정의 ···················································································· 357
2. 학교폭력의 유형과 실태 ················································································· 364
제2절 학교폭력의 예방 ······················································································ 366
1. 학교폭력예방교육 ·························································································· 366
2. 학교폭력예방교육의 과제 ··············································································· 372
제3절 학교폭력의 대책 ······················································································ 374
1. 학교에서의 학교폭력 사안처리 절차 ································································ 374
2. 교육지원청에서의 학교폭력 사안처리 절차 ······················································· 379

제13장 학교안전사고와 법률(주영달) ··································································· 393
제1절 학교안전사고의 개념과 유형 ······································································ 393
1. 학교안전사고의 개념 ····················································································· 393
2. 학교안전사고의 유형 ····················································································· 394
제2절 학교안전사고와 관련한 법률 및 법적 쟁점 ··············································· 396
1. 학교안전사고와 관련한 법률 ··········································································· 396
2. 학교안전사고와 손해배상의 문제 ····································································· 398
3. 학교안전사고와 형사법 문제 ··········································································· 398
4. 학교안전사고와 징계 문제 ·············································································· 400
제3절 학교안전사고와 손해배상 ·········································································· 400
1. 피해자 구제 방법 ·························································································· 400
2. 교원의 행위로 인한 안전사고 ········································································· 405
3. 학생의 행위로 인한 안전사고 ········································································· 407
4. 시설로 인한 학교안전사고 ·············································································· 412
5. 학교안전공제 ································································································ 413

제14장 교육복지와 대안학교(전윤경) ································································· 417
제1절 교육복지 ································································································· 417
1. 교육복지의 이해 ··························································································· 417
2. 교육복지의 목표 ··························································································· 419
3. 교육복지의 법적 근거 ···················································································· 420
4. 외국의 교육복지 관련 법제 ············································································ 428
제2절 방과후학교 ······························································································ 433
1. 방과후학교의 이해 ························································································ 433
2. 법적 근거 및 운영 ························································································ 436
제3절 대안학교 ································································································· 437
1. 대안학교의 이해 ··························································································· 437
2. 대안학교의 유형 및 법령의 내용 ····································································· 439

제15장 교육정보화와 법(정순원) ········································································· 453
제1절 교육정보화법 ··························································································· 453
1. 교육정보화의 개념 ························································································ 453
2. 교육정보화 법령 체계 ···················································································· 454
3. 교육정보화 법령의 주요 내용 ········································································· 458
제2절 원격교육법 ······························································································ 461
1. 원격교육의 개념 ··························································································· 461
2. 원격교육 운영 현황 ······················································································· 462
3. 원격교육에 관한 법령 체계 및 주요 내용 ························································· 464
제3절 교육기관 정보공개법 ················································································ 469
1. 교육정보공개의 개념 ····················································································· 469
2. 교육정보공개제도의 헌법상 의의 ····································································· 472
3. 교육기관정보공개법의 주요 내용 ····································································· 473
제4절 개인정보 보호법 ······················································································ 478
1. 개인정보 보호법의 개요 ················································································· 478
2. 개인정보 보호법의 체계와 특징 ······································································ 479
3. 개인정보 보호법의 주요 내용 ········································································· 481
제5절 저작권법 ································································································· 493
1. 저작권법의 개요 ··························································································· 493
2. 저작권법의 주요 내용 ···················································································· 494
3. 저작자 등의 권리 ·························································································· 496
4. 저작권자의 권리 제한 및 예외 ········································································ 497
5. 권리 구제의 방법 ·························································································· 503

학습목표 ········································································································· 507
찾아보기 ········································································································· 510