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http://dx.doi.org/10.7837/kosomes.2016.22.5.430

Constitutional Legitimacy of the Maritime Cadet Training System : Justifiable Restrictions on the Cadet's Fundamental Rights at the College of Maritime Science of the KMOU  

Lee, Sang-Il (Department of Ship Operation, Korea Maritime and Ocean University)
Yoo, Jin-Ho (Korean Register of Shipping)
Choi, Jung-Hwan (Department of Maritime Administration, Korea Maritime and Ocean University)
Publication Information
Journal of the Korean Society of Marine Environment & Safety / v.22, no.5, 2016 , pp. 430-443 More about this Journal
Abstract
This paper involves the constitutionality of the restrictive by-laws established by the 'College of Maritime Science' at the 'Korea Maritime and Ocean University' when they affect the cadet's fundamental rights, particularly, in connection with the training system of the 'Merchant Cadet Dormitory.' The issue in question is whether the school regulations may fall within a judicially permissible boundary in light of the general principles of constitutional rights in that the rules are enacted by the school itself in accordance with the Article 31, Section 4 of the Constitution and largely regulate the cadets' living conditions on a campus. However, the general scrutiny standard the courts apply requires the school enactments to pass three tests to be justified: (1) legislative authorization, (2) proportionality and (3) non-infringement on the essential elements of the fundamental rights as articulated under Article 37, Section 2 of the Constitution. The review in this paper shows that, first, the by-laws at issue find themselves statutorily authorized by the 'Higher Education Act' and the 'Decree of the Establishment of National Schools', with the proportionality as a second part observed within a justifiable scope and the essential elements of the fundamental rights as the third point not being marred. In conclusion, the school's dormitory training system is not found to cross the line and, however, the school authorities still need to keep overseeing the overall training course to secure the constitutional proportionality.
Keywords
Bylaws of a School Organization; Maritime Cadet Training System; Restriction of Fundamental Rights; Infringement on Fundamental Rights; Principle of Proportionality;
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  • Reference
1 Bae, Y. K.(2004), A Study of University Regulations Vol. 5, No. 1, p. 311, 312, 313, 314, 315, 317, 318, 319, 320, 322.
2 Cho, S. H.(2002), School and Educational Law, p. 150.
3 Choi, S. H.(1996), Legal Status and Control of State for University Regulations, Journal of Law of Seoul National University, Vol. 37. No. 1, p. 59.
4 Han, C. L.(1997), Restriction and Limitation of Constitutional rights, Journal of Law of Chosen University Vol. 3, p. 122.
5 Hong, J. S.(1986), A study on the Legal Status of College Students, The Journal of Educational Law, Vol. 1, p. 123, 126, 127.
6 Hong, J. S.(2016), Administrative Law 24 ed., p. 138.
7 Kaneko(1978), Law of Education (Compilation), YUHIKAKU, p. 216.
8 Kim, C. S.(2013), Constitutional Law 21 ed., pp. 370-371, p. 346, 395.
9 Kim, C. Y.(2001), Administrative Law, p. 130.
10 Kim, H. J.(2008), The Legal character and Purview of University Regulations, The journal of Law of Korea Foreign language Uni., Vol. 29. p. 264.
11 Kim, N. H.(1974), Management of organizational behavior, p. 241.
12 Ko, J.(1999), Fundamental human rights and Assignment according to school regulations, Journal of the Korean Society of educational law, Vol. 11, No. 11, p. 31.
13 Kwon, Y. S.(2010), Constitutional Law, p. 346, 350, 347, 356.
14 Lee, J. I.(2009), The new configuration of logical system for Human rights, Journal of Judicial Examination Vol. 54, No. 4, p. 14, 15.
15 Lee, K. U.(2004), Legal Status and Incorporation of National Universities, The Journal of educational law Vol. 16, No. 2, p. 166.
16 Lee, S. N.(1982), Personality and Teaching behavior, pp. 15-16.
17 Nishihara Kan'ichi(1973), Law of Commercial Activities, Compilation of Legal Studies, YUHIKAKU, p. 49.
18 Oh, C. S.(1987), Philosophy of Education, pp. 172-173.
19 Otto Mayer, Deutsches Verwaltungsrecht, Bd. I, 1985.
20 Pyo, S. Y.(1997), Major issues in special legislation of education regarding dispute settlement Vol. 3, The Journal of educational law, p. 137.
21 Seung, N. I.(2016), Constitutional Law 16 ed., p. 952, 975.