홈스쿨링의 헌법적 허용성 검토

Abstract

Since the transition to universal education in Korea after the modern era, education has been predominantly led by the state, defining contemporary education as school-based education. It is true that school education has undeniably played a significant role in the development of our education. However, this state-led educational system, while normatively significant in realizing the right to receive equitable education, has started to reveal a variety of issues in terms of the societal realization of individual needs. A number of strategies has been proposed to address these challenges, and among them are individuals attempting a novel form of education outside the traditional school system, called homeschooling. The beginning of homeschooling was a complaint from the state-led education system, but now homeschooling is being done for various grounds. Homeschooling is becoming a new form of education outside of school. For a new system to be formally established via norms, it must undergo diverse discussions from conceptual definition to institutionalization prior to finally achieving normative institutionalization. While homeschooling can be considered a new system from the perspective of the right to receive education, it simultaneously presents inherent challenges within the existing legal framework of the present state-led school education system. Until formal institutionalization via the establishment of legal norms, such discussions can only remain ongoing. If we interpret Article 31, Paragraph 2 of the Constitution as an obligation to provide education at the level determined by law rather than compulsory attendance, homeschooling could be permissible. In order to bridge the gap between institution and normative regulation in this respect, the state should speed up institutionalization via legislation to ensure children's right to receive a certain level of education and a safe educational environment via home schooling. Moreover, homeschooling is derived from the constitutional right to the fundamental education of children under Article 31 of the Constitution, as well as the parental right to the education of their children under Article 31, Paragraph 1, and Article 36, Paragraph 1 of the Constitution. The subjects of homeschooling are the child and the parent, and when the rights of these two subjects conflict, the parental right to educate the child should be realized within the scope that does not infringe upon the child's right to basic education. Homeschooling is a necessary system in terms of diversity as an educational way for children in a diversified modern society.