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大學自治、退學處分與法律保留原則、比例原則之探討-最高行政法院九十一年判字第三四四號、四六七號判決為中心並兼評司法院大法官會議釋字第五六三號解釋

黃耀南

1 Dec 2003

NobleIDark:/48914/w1/20260515/65370A10DOI10.6556/tjsser.2003.8.8

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Abstract

In year 2001 Taipei Supreme Administrative Court made two verdicts: (1)Verdic No. 1833 〝Year 89 Su Tzu〞-flunking out on 1/2 flunk (2)Verdic No. 2311 〝Year 89 Su Tzu〞-flunking out on a major violation of school disciplines These two verdicts announced that the above two disposals violated the Preservation Principle of Law, and the original disposals were revoked. It ignited a discussion for the acdemic circle to agitates the issues. However, The Highest Administrative Court revoked both verdicts later, and pronounced on the university to win the law suit. (See Verdict No. 344、467 〝Year 91 Pan Tzu〞). They regarded 〝flunking out〞 to be within the range of university autonomy. They though that preservation principle of law was not applicable, or low density preservation was enough. They also recognized re-authorization principle. Each court had different opinions. It is worthwhile for a further study so as to charify the issues. Recently the Grand Justice Meeting of the Judiciary made an Explanation No. 563 〝Shih Tzu〞 on July 25, 2003. They regard the disposal of flunking out belongs to the range of university autonomy. The university Should deal with the flunking out reasonably, and have proper regulations related to this affair. It requires a proper procedure to draw up and carry out the regulations. They have made an explanation on the above issues. However, from the viewpoint of theory, it requires a further study on the meaning of academic freedom and its relationship with university autonomy. Is university autonomy not applicable to the reserved principle and the ratio principle of law? Is the disposal of flunking out within the range of academic freedom? They are all worthwhile for us to research again so as to clarify the meaning of protecting systematic academic freedom and its relationship wiht the university autonomy. In my research opinion, the university autonomy is a measure to protect the academic freedom systematically. There exists a 〝measure and purpose〞 relationship between the both (academic freedom and university autonomy). The range of university autonomy is defined according to 〝Significance Theory〞 which directly involves 〝important affairs〞 on the academic research and teaching. These are of the range of university autonomy. An university is sure to have the right of flunking out, but it doesn't an important academic part. It is a 〝disposal of punishment〞 to the students. It can change the status of the student, and reduce his educational chance. It has a significant influence on the educational right which the Constitution gives to the people. At least there must be a frame type legislation as a standard. This standard must conform to the percentage principle, and be made according to a proper procedure. Thus, thestudent's rights and interests can be protected, and the standard can conform to the principle of the country ruled of law.

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