국립대학의 기본권 주체성과 대학의 자율성

초록

Korean Constitutional Court, in a series of cases, acknowledged that national universities can hold Constitutional Right to Academic Autonomy and that national universities themselves as well as professors, professorate and administrative staff can claim the right according to the context. The Court has gone as far as to accept that national universities can claim the right against citizens. However the Court has failed to explain the mechanism in which national universities become the subject of constitutional rights and to suggest the criteria to decide the contents of the right to academic autonomy. Thus we need to repair related legal doctrines as follows: Firstly, national universities cannot, in principle, hold constitutional rights but can exceptionally claim academic freedom against government, insofar as it is needed to protect professors’ and students’ freedom of research and education. Secondly, it is desirable to perceive academic autonomy as constitutional principle rather than as constitutional right, for the former is easier to decide the contents of academic autonomy. Article 22 of Korean Constitution specifically guarantees academic freedom. Thirdly, academic autonomy must be the criterion to decide the contents of academic freedom that universities possess. Thus national universities can claim academic freedom only to decide the organization and procedure of each university in which professors and students can research, teach and learn refusing the interference of government. Fourthly, even though the Court might perceive academic autonomy as constitutional right of national universities, it can never become the right to decide every aspect of academic administration irrespective of governmental oversight. It is the right to decide the organization and procedure proper to protect academic freedom of research and education. Fifthly, whether national universities‘ academic autonomy is perceived as constitutional right or as constitutional principle, it can be claimed not only by national universities themselves but also by relevant university members like professorate. Sixthly, it is impossible in any case for national universities to claim academic freedom or academic autonomy against citizens. They can only against government.

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