검색 상세

학교폭력예방법과 무관용 정책

School Violence Prevention Act and Zero-Tolerance Policy

  • 윤상희 (Sanghui Yun, 대학원 법학과 형법전공)

초록/요약

Addressing the recent surge in serious school violence incidents reported in various media outlets, South Korea has underscored the severity of school violence. Consequently, there is a growing call to address the phenomenon of the younger age and brutality of school violence and juvenile crime through various measures. Laws pertaining to the prevention and response to school violence are continuously being amended to address the evolving nature of school violence. However, there are divergent opinions favoring harsh punishment for perpetrators, leading to amendments to the school violence prevention law in a punitive direction. This is notably evident in the emphasis on maintaining student records as a form of punishment. It is evident from South Korea's cultural currents that such punishment is heavily skewed towards severity. Moreover, an increase in lawsuits and precedents aimed at erasing records highlights the penetration of criminal law into the realm of education, burdening judges and impeding educators' ability to teach. The current approach to addressing school violence, characterized by legal battles and a punitive stance, is sometimes referred to as a 'zero-tolerance policy' in the media. Strictly speaking, the zero-tolerance policy refers to a policy introduced in the United States in the 1990s to combat drug trafficking. However, it is noteworthy that the zero-tolerance policy was introduced in the context of school violence in the United States and faced considerable criticism. In particular, the zero-tolerance policy, which advocated for fair punishment for any violation of standards without considering context, was criticized for not tolerating even the mistakes of immature students, becoming a standard for punishing students without flexibility. Punishments were applied even for students unintentionally carrying weapons or engaging in minor disputes. Although there may be differences in punishment standards due to cultural differences, the zero-tolerance attitude towards punishment is similar to South Korea's current approach to addressing school violence. Therefore, it is necessary to reflect on the problems of the zero-tolerance policy applied to school violence in the United States and consider what issues South Korea's current approach to addressing school violence and related laws and policies may have, and what direction they should take for improvement.

more

초록/요약

최근 우리나라는 언론과 각종 미디어에 심각한 학교폭력 사안들이 등장하여 학교폭력의 심각성이 강조되었다. 이로 인해 학교폭력 및 소년 범죄의 저연령화와 잔인성을 해결하기 위해 다양한 대책을 마련해야 한다는 목소리가 나오고 있다. 학교폭력예방 및 대책에 관한 법률이 현재 끊임없이 변화하는 학교폭력에 대응하기 위해 거듭하여 개정되고 있다. 그러나 가해자 강경 처벌 위주의 의견이 분분하고 그에 따라 학교폭력예방법도 엄벌주의적 방향으로 개정되고 있다. 이는 학생부 기록 보존이라는 처벌 방법에서 두드러지게 나타난다. 우리나라의 문화적 기류에서 해당 처벌은 상당한 엄벌에 치우쳐 있음을 알 수 있다. 또한 기록을 없애기 위한 소송 및 판례가 증가하면서 법관의 업무 부담, 교사들의 교육 능력 제한 등 교육 영역으로의 형법이 침투한 현실을 볼 수 있다. 법정 싸움과 엄벌주의로 흘러가고 있는 지금의 학교폭력 대처를 언론에서는 ‘무관용 정책’이라고 말하기도 한다. 엄밀히 말하면 무관용 정책이란, 미국의 마약 단속을 위해 1990년대에 도입된 정책을 말한다. 다만 주목해야 할 점은 무관용 정책이 미국에서 학교폭력의 영역에 도입되었고, 수많은 비판을 받았다는 것이다. 특히 ‘그 어떤 상황이라도 맥락을 따지지 않고 기준을 어겼을 시 공평하게 처벌함’을 주장하는 무관용 정책은 미성숙한 학생들의 실수조차 용납하지 않았고, 융통성 없이 학생을 처벌하는 기준이 되었다는 비판을 받았다. 학생이 고의나인지 없이 흉기를 소지하거나 사소한 다툼을 벌이는 것까지 처벌하였는데, 비록 문화적 차이로 인해 처벌 기준의 차이가 있으나 무관용적인 엄벌 태도는 우리나라의 학교폭력 대처 방식과 유사하다. 따라서 미국 학교폭력에 적용된 무관용 정책의 문제점을 토대로 현재 우리나라의 학교폭력 대처 및 관련 법과 정책이 어떤 문제를 가지게 되었는지, 발전해야 할 방향은 어떤 것인지 고찰해 볼 필요가 있다.

more

목차

초록 ··························································································································ⅰ
Abstract ··················································································································ⅲ
목차 ··························································································································ⅴ
Ⅰ. 서론 ························································································································1
1. 문제 제기 ···········································································································1
2. 연구의 목적 및 방법 ·······················································································3
Ⅱ. 우리나라의 학교폭력 ·······················································································6
1. 학교폭력의 실태 ·······························································································6
2. 학교폭력예방 및 대책에 관한 법률 ·····························································9
가. 주요 내용 ·······································································································9
나. 법의 성격 ·····································································································10
다. 처리 절차 ·····································································································11
라. 최근 개정 ·····································································································12
1) 개정 단계 ··································································································12
2) 2023.10.24. 개정 및 신설 ·······································································12
3) 2024.01.09. 개정 및 신설 ·······································································15
4) 2024.02.28.초‧중등교육법 시행규칙 개정 ···········································15
3. 학교폭력예방 및 대책에 관한 법률의 문제점 ·········································16
가. 학교폭력의 범위 ·························································································16
나. 학생부기재 문제 ·························································································17
다. 절차의 문제 ·································································································21
1) 심의위원회 개최 전 ··················································································21
2) 심의위원회 개최 중 ··················································································22
라. 기능의 문제 ·································································································23
1) 사례1 ············································································································24
2) 사례2 ············································································································25
마. 소결 ···············································································································27
Ⅲ. 미국의 무관용 정책 ·······················································································28
1. 개요 ···················································································································28
2. 무관용 정책의 등장 ·······················································································29
가. 무관용 정책의 연혁 ···················································································29
나. 사회적 분위기 ·····························································································30
다. 총기 없는 학교법 ·······················································································31
라. 컬럼바인 ·······································································································32
1) 컬럼바인 총기 난사 사건 ········································································32
2) 컬럼바인 이후의 학교의 모습 ································································34
마. 소결 ···············································································································35
3. 무관용 정책의 적용 ·······················································································36
가. 개요 ···············································································································36
나. 미국의 학교폭력 관련 법 ·········································································37
다. 주법에 적용된 모습 ···················································································39
라. 무관용 정책이 적용되면서 발견된 사례들 ···········································41
1) 전국적인 사례 ····························································································41
2) 판례 ··············································································································43
가) Lyons v. Penn Hills School District ···············································43
나) Seal v. Morgan ·····················································································44
다) Ratner v. Loudoun Country Public Schools ·································46
마. 소결 ···············································································································47
4. 뉴욕주의 무관용 정책 ···················································································49
가. 뉴욕주의 법령 ·····························································································49
1) 개요 ··············································································································49
2) 뉴욕주의 학교폭력 방지법 ······································································50
3) 뉴욕주의 징계 규정 ··················································································50
4) 규정 위반에 대한 조치 ············································································52
5) 뉴욕주의 사례‧판례 ··················································································53
가) 뉴욕주의 사례 ························································································53
나) 뉴욕주의 판례-Cuff v. Valley Central School District ···············55
6) 소결 ··············································································································57
나. 결론 ·················································································································58
5. 무관용 정책의 문제점 ···················································································60
가. 정책의 부작용 ·····························································································60
나. 소결 ···············································································································65
Ⅳ. 무관용 정책의 한‧미 비교 ···········································································68
1. 학교폭력예방 및 대책에 관한 법률과 무관용 정책 ·······························68
가. 미국과 우리나라의 학교폭력 대책에 관한 비교 ·································68
1) 문화적 차이점 ····························································································68
2) 학교폭력 유형의 차이점 ··········································································70
3) 법령의 차이점 ····························································································71
4) 권력 중심의 차이 ······················································································72
나. 소결 ···············································································································73
2. 학교폭력과 무관용 정책의 의미 ·································································75
가. 학교폭력이 가지는 다양한 의미 ·····························································75
나. ‘무관용 정책’의 다양한 의미 ···································································76
3. 무관용 정책의 구조적 분석 및 비교 ·························································78
가. 무관용 정책의 세 단계 ·············································································79
1) 개념화 ··········································································································79
가) 우리나라의 문제 행동 개념화 ·····························································79
나) 미국의 문제 행동 개념화 ·····································································80
2) 제재 ··············································································································81
가) 우리나라 처벌의 무관용 ·······································································81
나) 미국 처벌의 무관용 ···············································································82
3) 체계 ··············································································································83
가) 우리나라 체계의 무관용 ·······································································83
나) 미국 체계의 무관용 ···············································································83
Ⅴ. 결론 ···················································································································85
참고문헌 ··················································································································88

more
반출 Meta View 목록