108課綱的法律性質與審議程序

A Study of the Legal Nature and the Deliberative Process of the 108 Curriculum Guidelines

回顧臺灣課程綱要的發展，即可得知課綱一直是政治角力的場域，而108課程綱要的研發與審議，亦無法避免政治力的介入。然而，教育應該回到人的自我實現這個核心目標，並將重點放在教育基本權的主體，也就是學生的自我實現權、父母的教育權與教師的教學自由。因此，如何以教育基本權主體為核心，建構符合憲法教育基本權保障精神的課綱，有其重要性及必要性。本文基於這樣的想法，以課綱涉及的教育基本權保障出發，試圖釐清課綱的法律性質爭議，以及建構課綱審議程序應有的正當行政程序要求。

In the review of the curriculum guidelines in Taiwan, the curriculum guidelines have always been the field of political wrangling. Political forces also intervened in the formulation and deliberation of the curriculum guidelines of 12-year Basic Education. However, the core aim of education should be the self-actualization of humans, and the focus be placed on the fundamental right to education. The right includes students' right to self-actualization, parents' right to education, and teachers' freedom of teaching. Therefore, it is crucial and essential to center on these subjects of the fundamental right to education and design the curriculum guidelines conforming to the constitutional protection of the right to education. This study begins with the protection of the fundamental right to education involved in the curriculum guidelines. It aims to clarify the disputes of legal nature regarding the curriculum guidelines and construct administrative due process in the deliberative process of the curriculum/ or change in other ways. Administrative due process, as one of the constitutional principles, includes the duty to act fairly, the right to be informed, the right to be heard, the duty to give reasons, and the disclosure of governmental data. This study also provides further exposition and examination of the implementation of these procedures in the deliberative process of the curriculum guidelines of 12-year Basic Education.