NHRCK Opinion for Revision of Enforcement Decree of Elementary and Secondary Education Act
The National Human Rights Commission of Korea expressed opinion to the Minister of Education, Science, and Technology as follows in relation to "Partial Revision of the Enforcement Decree of Elementary and Secondary Education Act" (hereinafter, “Revised Bill”).
Establishment of Clauses Permitting 'Indirect Corporal Punishment’ Not Recommended
The revised bill includes clauses that permit so called 'indirect corporal punishment' and delegates the concrete method and scope of the punishment to school regulation. However, the term “disciplinary method involving no infliction of direct pain to the body” in the revised bill is overly comprehensive and obscure that it is difficult to specify its contents and the definition of 'direct' and 'indirect' corporal punishment is unclear. Moreover, there is no evidence supporting the idea that ‘indirect corporal punishment’ which causes great psychological pain is safer or less painful than the directly inflicted physical pain. Therefore, the NHRCK viewed that the establishment of clauses that permit 'indirect corporal punishment' is not desirable since the mere exclusion of punishing tools or body does not fundamentally eliminate the aspects of corporal punishment that infringe human rights or are detrimental to education.
The current "Enforcement Decree of Elementary and Secondary Education Act (Paragraph 7 of Clause 31)" stipulates that the student guidance "shall be provided in a disciplinary method which does not inflict physical pain excluding the case where it is inevitable for the purpose of education" without specific delegation of the parent law, implying that a disciplinary action inflicting physical pain can be permitted if it is inevitable. This has the potential of violating the legislative purpose of the parent law which intends to protect the human rights of students and prohibit corporal punishment and also the provisions for securing student's human rights specified in upper laws such as the Constitution and international human rights treaties. Therefore, it is advisable to remove the condition, “where it is inevitable for the purpose of education.”
In 2002, the NHRCK announced in its opinion, ‘corporal punishment has great risk of training a student to passively respond to control and authority and also violating the personal liberty of the student, and therefore it has to be prohibited.’
Cautions Required for Introduction of Suspension, Must be Supplemented by Providing Administrative Review Request, Etc.
The revised bill newly established a clause that includes "disciplinary action based on school regulation" in the student punishment. However, the NHRCK decided that it is advisable to eliminate the clause for the delegation of the definition of the type of punishment to school regulations can lead to the violation of the principle of clarity and the principle of prohibiting general delegation while it is appropriate to specify the type of punishment in the law as the punishment has serious impact on fundamental rights of the students such as the right to education and personal liberty.
The ‘suspension’ system of the revised bill is a heavy penalty which deprives students of their right to learn and accompanies adversive effects such as unverified educational effect, and the scope of damage is even greater as it is recorded as "absence without notice" in the school record, giving disadvantage to student advancing into a school of higher grade. In particular, the current law grants administrative review request in the case of expulsion only that the administrative review request is not secured in the case of suspension. In other words, it is necessary to take cautions in introducing the suspension system and if it is a must-have, it will be also necessary to revise regulations on administrative review request in the current law. It is also advisable to seek for other measures to minimize the disadvantage to students considering the severity of the suspension penalty.
Limiting Student Rights and Delegating the Determination of Its Scope to School Regulations are Undesirable
The revised bill made general delegation to the head of the school to limit students' exercise of their rights by school regulation "in order to protect education and research activities of teachers and learning activities of students and maintain order inside school.”
However, the condition which is provided to limit student human rights - "protect education and research activities of teachers and learning activities of students and maintain order inside school" - is abstract and ambiguous that it can lead to arbitrary interpretation. Also, it can limit student's rights by making references to the enforcement decree and even by making general delegation to school regulation while the ｢Constitution｣ specifies that the right of the people can only be restricted by law. This is also against the legislative purpose of the "Elementary and Secondary Education Act" which stipulates that student's human rights must be guaranteed as much as possible. The NHRCK viewed that it is necessary to eliminate this clause for these reasons.
