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Title: 教師管教權與學生教育權衝突之解決─兼論學生法庭之建構
Authors: 陳文政
Keywords: 教師管教權
teacher rights
student rights
law-related education
the student courts
due process of law
Issue Date: 2010
Abstract: 近幾年來,隨著教師法及教育基本法等相關教育法令的修訂,教師與學生傳統的倫理關係逐漸法治化,在面臨大環境的改變,校園學生法庭是否能改變師生的角色,取代舊有的獎懲制度,平衡教師管教權與學生權利衝突,值得研究,是以本研究即從此一角度來探討學生法庭的建構意義及功能。 在研究方法上,本文採取文獻分析法與深度訪談法。藉由文獻分析法,研究者針對主題進行資料蒐集,從而能夠清楚掌握當前法治社會下教師管教權及學生教育權的意涵;同時,經由深度訪談法,本文取得相關資料進而分析學校學生法庭之實施情形,並了解教師正當管教及保障學生權益之實效性,以及探討學生法庭成敗因素。 本研究之結果顯示: 一、從教師專業自主權的角度觀察,教師管教權之法位階應屬於憲法所保障之基本權利。但教師管教權之行使,必須基於教育目的,在本質上為利他性質,管教權之行使必須考量學生的最大利益;在範圍上,管教權仍必須受法令及學校章則的監督限制。 二、學生之教育權即人民之教育權利,並以受教權為其核心概念,並可稱之為教育基本權;教育權係以學習權為其本質,顯現其以人民為教育主體的積極意涵。學校是學生的學習場域,是以,在學校中對於權利和人權的教導,就是確保學生學習權與受教權。 三、中小學教師管教權與學生教育權,在法律上屬於基本權利之衝突關係,此二者並無一定之優先保障順序,須視具體情況而定。儘管如此,國家可先以立法之方式解決大部分之衝突問題,在法律仍無法解決的情況下,尚可由人民權利保障之最後防線─司法機關衡量個案之具體事實,決定何者應予以優先保護。 四、學生法庭在校園內具有司法機關屬性,其性質雖偏重「管」,但實務上亦有「教」的作用。現有學生法庭之運作,在民主法治教育及道德教育兩方面已達到一定的實質成效。 五、然而,學生法庭並不能減輕教師的管教壓力。由於教師、行政人員及學生在時間、專業、配合度等問題,再加上政府無法提供適當資源,學生法庭之持續運作有其困難。
In recent years, based on the amendment of The Teacher Education Law, the revision of Educational Basic Law and related educational bills, the cardinal ethical relationship between teachers and students has been dominated by law. Can the role and the function of student courts take the place of the traditional discipline system to settle the conflicts between teachers and students? It is a worth studying issue. From this point of view, this research aims to investigate the constructive significance and function of the student courts in junior high schools. This study adopted the method of “document analysis” to collect information, and the method made it possible for the researcher to grasp the meaning of “right to teach” for teachers and “right to be educated” for students. In the meanwhile, the method of “in-depth interview” was conducted by the author to analyze how the operation of student courts in the schools, and to probe to the merits and demerits of the student courts. The main findings of this research include: First, teacher’s power to discipline and educate should be protected by the Constitution from the point of teacher’s autonomy. However, with the educational purposes, teacher’s above-mentioned power will be both altruistic and intrinsic, and the best benefits of students should be taken into consideration while wielding the power. In addition, it is limited by laws as well as school rules. Second, educational right belongs to people, and the right to receive education is the core value of that. It is also called educational fundament right. Learning right is the intrinsic quality of educational right, revealing that people are the subjects of educational activities. Viewed from the fact that students learn in schools, entrenching the concept of human rights in school is to strive to ensure the protection of students’ rights. Third, the conflict of right between teachers and students is the conflict of constitutional basic rights between them. One is not inferior to the other. The conflict solution depends on the conditions of different circumstances. Fourth, the role which student courts play is the judiciary in the campus. They are set up to “discipline students,” however, they act as a role to “educate students” in a practical sense. Pragmatically, student courts may facilitate the effect of democracy & law education as well as moral education. Finally, the mechanism of student court is not able to alleviate the pressure of teachers. On the whole, due to the deficiency of legal profession among teachers, administrative staff and students, the cooperative difficulty among them in various aspects and lack of sufficient resources supplied by the government, the goal of student courts in Taiwan can not be carried out.
Other Identifiers: GN0596101210
Appears in Collections:學位論文

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