The major purpose of the study is to analyze the Constitutional Court of Korea cases on the legal theory of the principle of definiteness in education law critically. The major findings are as follows. First, the court related this princip...
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https://www.riss.kr/link?id=A76461767
2007
-
360
KCI등재
학술저널
449-485(37쪽)
0
상세조회0
다운로드다국어 초록 (Multilingual Abstract)
The major purpose of the study is to analyze the Constitutional Court of Korea cases on the legal theory of the principle of definiteness in education law critically. The major findings are as follows. First, the court related this princip...
The major purpose of the study is to analyze the Constitutional Court of Korea cases on the legal theory of the principle of definiteness in education law critically. The major findings are as follows. First, the court related this principle to the Equal Protection Clause, the over-restriction principle, and the principle of non-infringement of the essential content of fundamental rights. However this relationship is inappropriate because they are different in their nature and meanings.<BR> Second, the court suggested the different subject of the judgement for definiteness by the area of its application. For example, the reasonable person in the case of the restriction of fundamental rights, the law enforcer when free speech is restricted, the sound judge and the reasonable person in the case of the principle of nulla crimen, and the people and the administrative body in the case of the delegated order. However, the reasonable person standard has a weakness since not this person but the Justice judges definiteness from the reasonable person"s viewpoint. Next, the law enforcer and the sound judge are not consistent with the purpose of requiring definiteness in the case of the restriction of free speech and the principles of nulla crimen. Finally, it is desirable that in the case of the elementary school students the parent judges definiteness considering their linguistic development.<BR> Third, the court approached to the reasonable person in terms of the ability of judgement, common sense, legal emotion, and the intelligence. This approach has some weaknesses. First, what they are and who should judge them are unclear. Also, they need the normative proving. Next, by distinguishing the have"s and the have-not"s this approach can oppress the possibility of the latter"s, in particular the teacher"s, litigation on the basis of the principle of definiteness. Finally, the meaning and the court"s interpretation of the law is not necessarily consistent with the legal emotion.<BR> Fourth, the court used the less restrictive standard in the case of the law with ever-changing and various facts, the collection of the less sensitive information, deregulation, and the delegated order while the more strict standard in the case of the restriction of free speech, the principle of nulla crimen, and the burdensome law. However this usage has two weak points. First, in the case of the delegated order it is necessary to use different standard by what is regulated. Further, which standard should be used is unclear in the case of the burdensome law with ever-changing and diverse facts. Finally, it is desirable to use the less restrictive standard in the case of delegation to the school regulation and rule.<BR> Last, the court usually used vagueness and overbreadth as the criteria for judging definiteness in the case of the restriction of the fundamental rights and free speech and the principle of nulla crimen. However the court did not distinguish between vagueness and overbreadth and factually make the requirements for definiteness loose through the judges"s compensatory interpretation and the constitution-consistent one. Also, the court used foreseeability and intelligibility as the criterion for judging definiteness in the case of the delegated order. However, the former is not appropriate as this criteria because this order is the problem of power distribution between the legislative and the executive. Also, there is a possibility that the judge"s compensatory interpretation does not reflect the unique logic of education.
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