〈釋字第六八四號解釋〉暨我國大學學生懲戒規範革新之研究

Abstract

司法院大法官公佈〈釋字第六八四號解釋〉後，〈釋字第三八二號解釋〉之意旨受補充，大學生得提起行政爭訟之範圍不再如過往見解一般，以「退學或類此處分行為」為限，擴及至「侵害學生受教育權或其他基本權利」者。然而，大學生至今對於校方記過等非關退學之處分爭訟時，仍往往因行政訴願機關或行政法院混淆程序與實體之分際，認其無涉基本權侵害，進而不合乎行政處分之要件，因而被認定程序不合法且被駁回。就學生權利之有關調查亦顯示，臺灣多所大學對於學生集會、言論等自由權利之有關限制亦未在該號解釋作成後「鬆綁」。 基此，本文將從〈釋字第六八四號解釋〉本身出發，釐清該號解釋所具體釋示與本文認為有欠周延之處，進而思考過往文獻上並未被多所關注之學生懲戒處分與規範之定性，以及其適用〈行政程序法〉與一般行政法原則所可能產生之問題。最後也重要地，以我國一百四十二所公私立大學，基於〈大學法〉第三十二條所授權訂定之學生懲戒規範為文本探究來源，就有關規定之形式與實質合憲性加以歸納與分析。 本文認為有關學生權利保障於大學懲戒規範不備之問題，多因未區別「懲戒」與「管教」之分際，且多數大學於國家戒嚴時期即有對侵害學生基本權之部分規範，仍以「大學自治事項」的外衣包裝之，並以空泛之「教育目的」為「正當性基礎」，自外於國家憲政秩序，而導致諸多亟需改進之爭議。最終，本文嘗試提出刪除〈行政程序法〉第三條第三項第六款之建議，與〈學生權利保障基本法〉之立法可能，揆諸研究發現，認為應將大學學生懲戒規範與處分，回歸「法規命令」與「行政處分」之本質，並由國家立法者制定框架性之基礎規範，使認事用法者在尊重學生權利之前提下有所適從。

J.Y. Interpretation No.684, which had modified No.382 that Justices of the Constitutional Court made before, made college students be allowed to bring administrative appeal or litigation not only for expulsions or similar decisions like No.382’s meaning but also for the decisions or measures infringing the student’s right to education or other constitutional fundamental rights. Until now, however, college students’ appeal or litigation for administrative actions made by administration in school without relevance with expulsions are still considered to be with no concern to infringing theirs’ fundamental rights and being dismissed. The Petition Reviewing Commissions or Administrative Litigation Courts thought those administrative actions were not in accord with the constitutive requirements of disciplinary sanction but they ignored the differences between substantive and procedural law . On the survey of student rights , a lot of universities in Taiwan still restrain students from basic human rights including assembly ,demonstration and the freedom of speech. Based on the reasons above, the study starts from analyzing J.Y. Interpretation No.684 in order to seek and figure out the specific explications and defects of this interpretation. Furthermore, we focus on legal characteristics of disciplinary measures and regulations which were often ignored by theories and the possible difficulties of those measures and regulations applied to “Administrative Procedure Act” and general principles of Administration Law. Last but not least,we search for disciplinary regulations of 142 universities including public and private universities in Taiwan authorized by “University Act” Article 32 to be materials of the research with the objective to make induction and analyze these regulations from substantial and procedural constitutionality . The study regards that the deficiency of protection of student rights about disciplinary regulations in university is caused by not distinguishing the boundary between “teaching” and “discipline”. Disciplinary regulations which have existed from “the Martial Law Period” up to now in many universities still infringe student fundamental rights. They are packaged by the term called “university self-government” and used inane “educational purpose” to be “Justification foundation”. Obviously, they are out of constitutional order in Nation, and cause considerable controversies which have yet to be improved. In the long run, the study makes the suggestion to delete “Administrative Procedure Act” Article 3.3.6 and the legislation possibility of “Student Rights Protection Fundamental Act”. After integrating the discovery from the study, we holds the opinion that putting universities’ disciplinary regulations back into “legal order” item , putting universities’ disciplinary decisions back into “administrative disposition” item, establishing the framework fundamental act by Legislative Yuan, serving justice practitioners to know how to recognize the truth and applying the laws based on the premise: “respecting the students’ rights” should be considered.