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헌법상 교육을 받을 권리의 재이해 : 홈스쿨링을 중심으로

헌법상 교육을 받을 권리의 재이해 : 홈스쿨링을 중심으로 (1회 대출)

자료유형
단행본
개인저자
최규환, 책임연구
서명 / 저자사항
헌법상 교육을 받을 권리의 재이해 : 홈스쿨링을 중심으로 / 최규환 책임연구
발행사항
서울 :   헌법재판소 헌법재판연구원,   2018  
형태사항
iv, 120 p. ; 27 cm
총서사항
헌법재판 심사기준 ;2018-C-3
서지주기
참고문헌: p. 110-120
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040 ▼a 211009 ▼c 211009 ▼d 211009
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082 0 4 ▼a 342.519 ▼2 23
085 ▼a 342.53 ▼2 DDCK
090 ▼a 342.53 ▼b 2012z22 ▼c 2018.C.3
245 0 0 ▼a 헌법상 교육을 받을 권리의 재이해 : ▼b 홈스쿨링을 중심으로 / ▼d 최규환 책임연구
260 ▼a 서울 : ▼b 헌법재판소 헌법재판연구원, ▼c 2018
300 ▼a iv, 120 p. ; ▼c 27 cm
440 0 0 ▼a 헌법재판 심사기준 ; ▼v 2018-C-3
504 ▼a 참고문헌: p. 110-120
700 1 ▼a 최규환, ▼e 책임연구
945 ▼a KLPA

소장정보

No. 소장처 청구기호 등록번호 도서상태 반납예정일 예약 서비스
No. 1 소장처 중앙도서관/법학도서실(법학도서관 지하1층)/ 청구기호 342.53 2012z22 2018.C.3 등록번호 111797183 도서상태 대출가능 반납예정일 예약 서비스 B M

컨텐츠정보

목차

Ⅰ. 서론 / 1
1. 연구의 배경과 목적 ······························································································1
2. 연구의 범위 ··········································································································2
Ⅱ. 홈스쿨링의 의의와 헌법적 쟁점 / 5
1. 홈스쿨링의 의의와 목적 ·······················································································5
가. 학교교육으로부터의 탈피-취학의무 면제요구 ···············································5
나. 제도화된 교육으로부터의 탈피-국가 및 공동체의 규율ㆍ감독 해제요구 ····6
2. 홈스쿨링의 동기와 현황 ·······················································································8
가. 한국의 홈스쿨링 사례 ····················································································8
나. 외국의 홈스쿨링 사례 ····················································································9
다. 소결 ··············································································································11
3. 홈스쿨링 관련 현행법령과 헌법적 쟁점 ···························································12
가. 홈스쿨링 관련 현행 법령의 내용 검토 ·······················································12
나. 홈스쿨링 관련 비교법적 검토 ·····································································14
다. 학교의 개념과 학교교육 ··············································································17
라. 홈스쿨링 관련 현행법령의 헌법적 문제 ·····················································18
Ⅲ. 헌법상 교육의 개념 및 의무교육의 본질과 취학강제 / 20
1. 교육의 개념과 본질 ····························································································20
가. 교육의 어원 ··································································································20
나. 교육의 개념본질적 징표 ··············································································21
다. 헌법적 교육 개념 정립의 필요성 ································································23
2. 교육을 받을 권리의 헌법적 수용연혁에 비추어 본 의무교육의 의미 ·············24
가. 문제의 소재 ··································································································24
나. 교육을 받을 권리의 헌법적 수용 배경 ·······················································24
(1) 공비(公費)교육사상의 출현과 한계 ·······················································24
(2) 19세기 중반 교육에 관한 권리의 법제화 ············································26
(3) 독일과 일본의 국가주의 교육법제 형성 ···············································27
(4) 교육에 관한 권리의 헌법적 명문화 및 국제인권화 ·····························29
(5) 소결 ········································································································32
다. 헌정사적 분석을 통해 본 현행헌법상 의무교육의 이해 ····························34
(1) 19세기 구한말 ·······················································································34
(2) 대한민국임시정부 이후 ··········································································35
(3) 광복 이후 ·······························································································37
(4) 제헌국회 이후 ························································································38
(5) 소결 ········································································································42
Ⅳ. 홈스쿨링 전면 금지로 제한되는 기본권의 검토 / 46
1. 부모의 자녀교육권 ·····························································································46
가. 문제의 소재 ··································································································46
나. 기본권으로서 부모의 자녀교육권 인정 여부 ··············································47
다. 부모의 자녀교육권에 대한 헌법재판소의 개념 정의 ··································48
라. 부모의 자녀교육권과 아동의 교육을 받을 권리의 관계 ····························51
(1) 교육당사자로서의 부모와 아동 ·····························································51
(2) care하는 이익을 본체로 하는 권리 ·····················································54
(3) 자녀의 교육을 받을 권리 실현을 위한 부모의 자녀교육권 ················55
(4) 부모의 자녀교육권의 헌법적 근거와 사회권성 인정의 가능성 ···········57
마. 국가의 교육권한의 헌법적 본질 ··································································59
(1) 교육기본권 실현ㆍ보장의무와 국가의 교육권한 ···································59
(2) 국가 교육권한의 본질-권한 설정의 목적과 이유 ································60
(3) 국가의 교육권한과 부모의 자녀교육권의 관계 ····································62
2. 사회권으로서의 교육을 받을 권리 ····································································65
가. 헌법 제31조 제1항 ‘교육을 받을 권리’의 개념에 대한 논란 ···················65
나. 교육을 받을 권리의 사회권적 성격과 내용 ················································68
(1) 헌법상 교육이 추구해야 할 목표와 내용 ·············································68
(2) 사회권으로서 교육을 받을 권리의 보호내용 ········································70
(3) 공교육체계의 구축ㆍ관리 요구권과 공교육체계에 대한 접근이용권 ·· 71
(가) 교육 급부 의미의 구체화에서 고려해야 할 기준 ·························71
(나) 교육을 받을 권리와 국가의 교육급부이행의무의 재구조화 ·········73
3. 교육을 받을 권리의 특수성 및 자유권적 성격의 복권 ····································77
가. 문제의 소재 ··································································································77
나. 교육을 받을 권리의 자유권적 속성과 내용의 인정가능성 ·························78
다. 헌법상 교육 실현을 위한 전제로서 교육을 받을 권리의 자유권성 인정 · 81
(1) 헌법상의 교육 개념 ···············································································81
(2) 인간존엄성과 인격주의적 인간상의 헌법적 의미 ·································82
(3) 교육을 받을 권리의 자유권성 인정의 효과 ·········································84
라. 공교육체계에서 교육을 받을 권리의 자유권성 인정의 여지 ·····················86
Ⅴ. 홈스쿨링의 헌법적 허용 여부와 한계 / 89
1. 심사기준의 문제 ·································································································89
가. 홈스쿨링의 허용성 문제에 대한 심사기준 ··················································89
나. 홈스쿨링에 대한 급부가능성과 기본권보호의무 문제에 대한 심사기준 ···90
2. 홈스쿨링의 전면 금지에 대한 과잉금지심사 ····················································91
가. 심사의 구도 ··································································································91
나. 민주주의에서 시민의 사회적 동질성 확보 ··················································92
(1) 민주시민의 동질성 확보와 취학의무의 관련성 주장 ···························92
(2) 동질성 테제의 목적정당성 부정 ···························································93
(3) 취학의무의 수단적합성ㆍ피해최소성 위반 ············································94
다. 가치교육의 불가피성 ····················································································96
라. 평행사회 방지 ······························································································97
마. 사회적 선별 및 교육의 계층적 차별 방지 ···············································100
바. 아동에 대한 사회화 ···················································································101
Ⅵ. 결론 / 104
❚참고문헌 ···································································································································110

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