독일기본법상 국가에게는 교육제도에 대한 포괄적 지배권인 학교감독권이 부여되고 있어 모든 학교제도에 대한 관리·감독을 행하고 있다. 따라서 기본법상의 명문규정 없이 관련조항의 해석과 이론상으로만 인정되고 있는 학교교원의 교육의 자유, 넓은 의미의 교육권은 항상 국가의 학교감독권에 의해 제한되고 규제될 수밖에 없다. 이러한 국가의 학교감독권에 의해 교원의 교육권은 많은 부분에서 실질적인 제한과 규제를 받고 있는데, 무엇보다도 기본법상에 명시되어 있는 국가의 학교감독권과 비교해 볼 때 아무런 명시규정 없이 직·간접적인 관련조항의 해석과 학설을 통해서만 보장을 담보 받고 있는 교원의 교육권의 근거적 취약성에 문제가 있다고 하겠으며, 또한 국가의 교육내용에 대한 지배·개입의 권한을 전면적으로 허용하는 것도 그러하다. 따라서 오늘날과 같은 공교육제도 하에서 국가는 교육의 모든 외적조건만을 정비하고, 교육내용에 대해서는 교사의 교육활동의 자유와 독립을 보장하는, 필요최소한도의 제한된 범위의 대강적 사항에 한해서만 관여하는 것이 요구된다고 하겠다.

Today the education has been performed in the public institution of school education. It is finally teachers that these days guarantee the right to learn of children and students in the public educational system, and substitute of parent's educational right. Accordingly it depends on what legal status teachers have had and what educational rights they have enjoyed whether the general policy of education and the student's education responsible for the future of one nation succeed or not. Teacher's educational rights exist for the protection of right to learn for children and students and for the realization of parent's educational right to their children. So the constitutional grounds are required to systematically guarantee teacher's educational rights under the concept that the protection of teacher's educational rights means the realization of student's right to learn. Teacher's educational rights are based on children's right to learn but they more radically depend on the nature and ideology of education. Children have right to learn as natural right to growth and development, which core lies in freedom to learn. The freedom to learn is realized by learning based on the nature and ideology of education and what realizes it is teacher's education. Teachers, therefore, should be in the position of developing the character and personality of their students according to the nature and ideology without any other external press and interruption. These days public education, however, is exercised under national administration of education and led by national ideology. Besides national arrangements of education. Parents and students as well as teachers are complicated under the national structure of public educational system. And whether to protect not only teacher's personal educational rights but collective rights of teachers' union even in each school, related to student's right to learn, appears to be an issue. After all the problem of teacher's educational rights is not limited to teacher's themselves, but depends on how to set up and solve the authority bearing among educational subjects(students, parents, teachers, nation) in the national structure of educational system.

Today the education has been performed in the public institution of school education. It is finally teachers that these days guarantee the right to learn of children and students in the public educational system, and substitute of parent's educational right. Accordingly it depends on what legal status teachers have had and what educational rights they have enjoyed whether the general policy of education and the student's education responsible for the future of one nation succeed or not. Teacher's educational rights exist for the protection of right to learn for children and students and for the realization of parent's educational right to their children. So the constitutional grounds are required to systematically guarantee teacher's educational rights under the concept that the protection of teacher's educational rights means the realization of student's right to learn. Teacher's educational rights are based on children's right to learn but they more radically depend on the nature and ideology of education. Children have right to learn as natural right to growth and development, which core lies in freedom to learn. The freedom to learn is realized by learning based on the nature and ideology of education and what realizes it is teacher's education. Teachers, therefore, should be in the position of developing the character and personality of their students according to the nature and ideology without any other external press and interruption. These days public education, however, is exercised under national administration of education and led by national ideology. Besides national arrangements of education. Parents and students as well as teachers are complicated under the national structure of public educational system. And whether to protect not only teacher's personal educational rights but collective rights of teachers' union even in each school, related to student's right to learn, appears to be an issue. After all the problem of teacher's educational rights is not limited to teacher's themselves, but depends on how to set up and solve the authority bearing among educational subjects(students, parents, teachers, nation) in the national structure of educational system.

educational right, freedom of education, teacher's educational right, educational subjects