[제3판] 학교와 교육법 > 교육학

법의 전문가가 아닌 예비교원, 현직 교원, 교육 행정가를 위한 책으로 교육법의 기초부터 응용까지 쉽게 기술하고 있다. 이번 3판은 지난 10년의 교육법 변화를 반영하면서 미래 10년의 교육법을 안내하는 전부 개정판이다.
첫째, 오래된 판례는 원칙적으로 2010년 이후의 판례로 대체하였고 판례의 유기적인 분석을 강화하였다. 초판을 낼 때만 해도 교육법 판례가 많지 않았고 그나마 수집하기도 쉽지 않았다. 이제는 교육법 쟁점별로 판례도 많이 늘었고, 인터넷으로 확정판결서를 열람할 수도 있다. 물론 최신 판례를 찾을 수 없거나 기존 판례가 여전히 가치를 지니고 있다면 계속 활용하였다. 국내 판례가 부족한 경우 불가피하게 미국의 판례를 추가로 활용하였다.
둘째, 국가의 교육형성권을 둘러싼 교육법 갈등이 한층 고조되는 상황을 고려하여 교육과 국가의 관계를 다루는 장을 신설하였다. 공교육체제에서 국가의 역할과 권한은 학습자ㆍ학부모ㆍ교원의 권리와 밀접히 연결되어 있는 만큼 국가의 교육형성권과 그 한계에 초점을 맞추어 분석하였다. 아울러 교육기회를 단순히 제공받는 대상에 머물지 않고, 학습자가 학교의 교육책임을 주장하는 교육법 현상을 반영하는 장도 별도로 구성하였다.
셋째, 사회문화적 환경의 변화와 함께 법적 갈등의 초점이 변동되거나 확장된 주제는 관련 쟁점을 반영하여 더 심층적으로 다루었다. 학생안전사고는 이전보다 훨씬 많은 판례를 활용하여 다양한 상황을 이해할 수 있도록 하였고, 학교폭력에 따른 조치사항은 징계권의 차원에서 새롭게 편입하였다. 어린이집과 유치원은 물론이고 초ㆍ중등학교에서도 논란이 증폭되고 있는 아동학대는 지도권의 남용ㆍ일탈이라는 관점에서 학생체벌과 함께 다루었다.
넷째, 사회의 성의식(性意識)과 성문화 변화에 따른 법적 대응을 비중 있게 다루었다. 성 비위행위에 따른 법적 문제는 학생안전사고, 아동학대, 교원징계, 나아가 고용관계의 영역에서 각각 그 성격에 맞추어 분석하였다. 일부 법 논리의 중복이 있는데도 불구하고 다양한 쟁점 영역에서 각각 다룬 것은 학습자ㆍ교원ㆍ교육행정가 모두에게 성인지 감수성(gender sensitivity)이 중요한 과제로 부각되었기 때문이다.
다섯째, 초판을 내었던 2002년만 해도 인터넷이 보급되는 초창기였지만, 지금은 PC뿐만 아니라 모바일 기기를 이용하여 언제 어디서든 법령검색이 용이해졌다. 따라서 이번 개정판에서는 원칙적으로 법령을 자료로 포함시키지 않았다. 가독성을 높이고 법 논리에 초점을 맞출 수 있도록 법령 조항 번호도 가급적 각주로 돌렸다. 판례 검색은 용이해졌지만 아직 사건의 진행경과(history) 서비스가 제공되지 않기 때문에 심급별 사건번호는 충실히 표기하여 참조할 수 있도록 하였다.

목차

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

저자소개

조 석 훈
서울대학교 공법학과(법학사)
서울대학교 대학원 교육학과(교육학석사, 교육학박사)
한국대학교육협의회 연구원
인제대학교 부교수
청주교육대학교 부교수
가천대학교 교수(현재)

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