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University Autonomy and Protection of the Status of University Teachers: On Disputes over “Upgrading within Time Limit” and “Teacher Review”
teacher upgrading,teacher review,upgrade within time limit,refusal of reengagement,university autonomy,
|Publication Year :||2019|
It was not until the full text of the University Act was amended and announced on December 28, 2005 could the universities in Taiwan, in addition to the provisions under Article 14 of the Teachers’ Act, formulate separate stipulations for the suspension or refusal of reengagement of teachers and implement and provide the same in the contracts after being approved by the academic affairs meeting pursuant to Article 19 of the University Act. Among the above amendment, paragraph 1 of Article 21 of the University Act requires universities to establish the teacher review system as reference for issues such as suspension and refusal of reengagement of teachers. From then on, most universities in Taiwan started to formulate the so-called “upgrading-within-time-limit clause” or “passing-the-review clause,” which respectively requires teachers to, within certain time limit, upgrade or pass the teacher review. Under these clauses, the universities may refuse the reengagement as disciplinary measure based on the reason that the teachers fail to upgrade or pass the teacher review within certain time limit. The formulation and application of the above two clauses lead to various disputes and discussions in practice. This thesis focuses on how to comprehend and deal with the conflicts between the scopes of Taiwanese university’s human resource autonomy protected by university autonomy and the protection of university teachers’ personal right to work. In addition, this thesis also centers on whether the formulation of the above two clauses is lawful and constitutional or not.
Firstly, this thesis selects five universities’ law schools by sampling and organizes and analyzes the contents of upgrading of university teachers, teacher review, and the above-mentioned two clauses of such law schools to understand how the above regulation systems actually function. Secondly, this thesis thoroughly collects the judgments rendered by the Administrative Courts on upgrading of university teachers and failure to pass teacher review, analyzes the contents of such judgments, and further presents how the universities in Taiwan handle teacher upgrading and teacher review as well as the actual situations of using refusal of the reengagement as disciplinary measure for violation of the above-mentioned two clauses. These become the basis for this thesis to examine the substantial constitutionality of the above-mentioned two clauses. Furthermore, in Chapter Three, this thesis, from the point of fundamental rights conflict between university autonomy and university teacher’s right to work, discusses the constitutionality of Article 19 of the University Act as well as the question about how to apply such article and Article 14 of the Teachers’ Act. In Chapter Four, this thesis examines the constitutionality of the above-mentioned two clauses based on the analysis results of the regulations of the five sampled universities and the judgments.
Lastly, this thesis brings out the research conclusion that the legislators had already balanced the interests and values between university autonomy and university teacher’s right to work by enacting Article 14 of the Teachers’ Act and Articles 19 and 21 of the University Act. This thesis holds that, from the viewpoint of putting the harmony principal and grammatical interpretation into practice, when universities formulate separate stipulations for the refusal of reengagement such as the above-mentioned two clauses, the universities shall decide whether the violation constitutes a serious offence pursuant to sub-paragraph 14, paragraph 1, Article 14 of the Teachers’ Act. Only when the violation constitutes a serious offence can the universities refuse to reengage applicable teachers. As to the core matters of teacher upgrading, such as the election method and the number of external review committee members and the standards of passing the external review, this thesis finds that there are massive differences among relevant regulations of the universities, which might lead to insufficient accuracy and credibility of the upgrading decision. In addition, the review opinions of the external review committee members are usually too abstract or too simple, which make it difficult for university teachers to be granted with remedy. As for teacher review, since the requirements for passing the review are rather concrete and clear, there are fewer disputes. Moreover, passing the teacher review means that the teacher is not incompetent to teach, research, mentor, or do other performances. Thus, this thesis holds that there is lack of necessity to formulate the “upgrading-within-time-limit clause.” This thesis also includes the reflection and the prospect of the limits of the research concerned.
|Appears in Collections:||科際整合法律學研究所|
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