大學自治與自治監督的平衡——以台大校長遴選案論立法論之重要性

The Balance between University Autonomy and Supervision: The Importance of Legislative Science in the case of the presidential selection of NTU

2018年之台大校長遴選案，因教育部於該年1月初不同意台大校長遴選委員會所提報之校長人選，結果導致形成受社會矚目的重大案件，隨後於同年年底突峰迴路轉，勉予同意台大提報之人選。該案主要之癥結在於大學法及相關法令，對於大學自治與自治監督之分際規定並不明確，致法解釋歧異甚大，也讓政治力可能滲入大學自治，使教育部與台大校方關於大學自治之自治範圍解釋，形成南轅北轍，互不退讓之立場，致台大長達500多天無新校長領導，損及公共利益及台灣大學之運作。本論文除整理解釋論上之爭點討論外，主要重心置於長期受法律人忽略之「立法學」之討論，意即：立法時（含立憲時）應遵守之形式理性、實質理性及程序理性標準及立法後之效力檢視觀點，逐一剖析憲法第162條及大學法第1條第2項及同法第9條規定之缺失，並提出具體的修法意見，希望透過明確的修法，建立較理性的大學校長遴選程序，一方面除可解決台大校長個案問題，另一方面也可以有效建立台灣未來大學校長遴選制度的一般合理規範。

Due to the election of the president of the National Taiwan University in 2018, the Ministry of Education didn’t permit the president of the National Taiwan University which was selected by Presidential Selection Committee in early January of that year. This major case was brought to public attention, because the Ministry of Education agreed to the candidates for the selection of the National Taiwan University which was followed by asharp turn at the end of the year. The main crux of the case lies in the university law and related regulations. To be more precisely, the divisional regulations on the supervision of the range of university autonomy are not clear, and the interpretation of the law is very different. In addition, the political power involve university autonomy, and lead to the totally different opions on the range of university autonomy between the Ministry of Education and the University of Taiwan. Under this deadlock, the National Taiwan University kept operating with no new president for more than 500 days, which has damaged the public interest and the Substantive operation of the National Taiwan University.This article not only discusses the disputes in interpretation theory, but also focuses on the discussion of“Legislative Science”that has long been ignored by the law profession, meaning that the standard of formal rationality, substantive rationality and procedural rationality should be observed during legislative (including the enactment of Constitution). This article also discusses some viewpoints in order to examine the legislative effectiveness, and analyze the deficiencies in Article 162 of the Constitution and Article 1and Article 9of the University Law, then Ipropose specific opions of amendments. Ihope establish arational procedure of university president selection through clear revisions, this way can solve this case of the president selection of the National Taiwan University in 2018, on the other hand, it can also effectively establish the“general”rationalization of the selection system for presidents of universities in Taiwan in the future.