大學自治的憲法要求與其對教育行政的規範效果

The Constitutional Requirements to niversity Autonomy and Its Regulatory Effect on Educational Administration: According to the Criteria Provided by the Council of Grand Justices in Related Cases

大學法第1條規定：「大學應受學術自由之保障，並在法律規定範圍內，享有自治權」；然而，法律不能完全決定大學自治的範圍，因其屬憲法層次的保障。為確實釐清，國家藉由憲法第162條賦予之監督權，得對大學為何等規制，自應詳細審視司法院大法官相關解釋，由此探尋現行憲法保障大學自治的確實內涵。觀察相關解釋可以發現，其直接的解釋對象固然均係教務有關事項，亦即直接涉及教學自由；然而，司法院大法官在各該解釋已針對大學自治作了廣泛開展，尤其釋字第380號解釋理由書對大學自治保障範圍的廣泛界定，對若干尚未經其審查，但已備受關注的教育行政手段，足以提供檢視的規範角度。但考量相關解釋終究並非針對此等情境所為，其就此之論述尚未臻明確；在此範圍內，擬借鏡德國憲法學理與司法實務，期能提供更具體的建議方向。

Article 1 of University Act stipulates that “Universities shall be guaranteed academic freedom and shall enjoy autonomy within the range of laws and regulations”. However, the law cannot fully determine the scope of university autonomy since it belongs to the protection at the constitutional level. In order to clarify how the supervision conferred by Article 162 of the Constitution to the State for regulating universities, we shall carefully examine the related interpretations of the Grand Justices of the Judicial Yuan. We may therefore explore the true connotation from the current Constitution for university autonomy. By studying the relevant interpretations, it is found that although the direct target for those interpre- tations were all related to the teaching affair, which directly involves the freedom of teaching, still, the Grand Justices of the Judicial Yuan have been widely carried out their interpretations for university autonomy. In particular in the holding of the No. 380 Interpretation, the scope for protection of university autonomy is broadly defined thereof, which sufficiently provided a normative view to the several much concerned educational administrative measures without review therewith. However, since those interpretations were not specifically for such condition, the discussions were yet to be confirmed. Within this context, we will learn from the theoretical and judicial practices of the German Constitution in hoping to provide more specific suggestions.