公立中學教師與學校之聘任關係與相關權利救濟

Abstract

解嚴之後，隨著法治教育的落實和深化，人民權利意識逐漸甦醒，向來備受國家高權禁錮的特定人民，開始瞥見一絲曙光，嘗試突破這層桎梏。過去的校園內，充斥著特別權力關係的氛圍，特別是公立學校教師在人事規章制度青黃不接之際，多半比照公務人員的規定，呈現公教不分的情況。歷經多號大法官解釋的努力，本於「有權利即有救濟」的立場，逐漸將教師的身分單獨分離，而出現訴訟救濟的契機。首先，本文從教師的身分為始，逐一檢視是否該當於專業人員、公務員及勞工的地位，而認為三者兼備，並存且相容。其次，公立學校與教師的法律關係，在教育實務上，係透過聘任制度所形成。故正確界定其法律性質乃首要之務，是第一層次。本文認為屬於行政契約。其中，公立學校教師一部分來自私校轉任，箇中的關鍵在於：能否取得離職證明書以順利報到，這部分素來迭有爭議。本文主張發給離職證明書乃雇主的法定義務，無由拒絕。再者，若因教師法的事由致生下解聘、不續聘、停聘的結果，學校教評會的決議定性是第二層次，本文以為乃契約上的意思表示；接著，依教師法明文，該決議的效力繫於主管機關的核准與否，故該核准決定至為關鍵，是第三層次。本文認為乃行政處分；最後，一旦木已成舟，教師不服該身分變更的結果，究應以何者作為對象﹖對哪一項決定提起救濟﹖是第四層次，本文主張應以主管機關為被告，提起撤銷核准處分之訴。回到「有權利即有救濟」上，其他不涉及身分變更而對於教師的個人措施，若有不服，是否皆可訴諸司法﹖本文蒐集並分析近來各級行政法院的判決，進行類型化區分，計有行政處分措施、契約上意思表示措施及內部管理措施等三類，而異其救濟的可能。最後，相應選擇最適當的途徑，以確保教師權益。

Since the lifting of the martial law in Taiwan, the public awareness of rights has progressively awakened through legal education, and the people have tried to unfetter themselves from state authority. In the past, there were special power relations on campuses, particularly in public schools, where teachers were employed according to employment regulations for civil servants. This was due to the unsophisticated human resources regulations in such a transitional period, resulting in the indistinction between civil service and education. Over the years, thanks to numerous interpretations by justices based on the principle of “where there is right, there is remedy”, the teacher has progressively become an independent identity category, thereby creating a possibility for legal remedy.This article begins with an examination of the teacher's identity. It argues that the teacher has a triple identity of the professional, civil servant, and worker. Next, since the legal relationship between a public school and a teacher is established by employment. It is of primary importance to define its nature. In which, I argue, falls into the category of administrative contract. Some public school teachers are previously employed at a private school; therefore, to complete their employment process, they must obtain an employment separation certificate, which has constantly provoked controversies. This article argues that, first of all, the previous employer has a legal obligation to issue such certificate, and may not refuse to do so for any reason.Secondly, if a decision of dismissal, suspension, or discontinuation of employment is made based on reasons specified in the Teachers’ Act, such decision represents a manifestation of intention in the contract. Thirdly, since the Teachers’ Act stipulates that such decision shall come into effect based on the competent authority's approval. Such approval is crucial, and it falls into the category of administrative sanction. Lastly, once such decision on identity change is made and the teacher disagrees with it, a remedy procedure aiming for its revocation should be initiated, with the competent authority being the defendant. Given that “where there is right, there is remedy”, if teachers disagree with any personal administrative measures that do not involve identity change, can they also resort to legal remedy? By compiling and analyzing administrative court rulings in recent years, this article classifies such rulings into three categories – administrative sanctions, manifestations of intention in contracts, and internal management measures. A comparison is made between these circumstances in terms of the possibility of remedy. Finally, this article recommends the most appropriate remedy method among existing types administrative litigation for each circumstance, so as to protect teachers’ rights.