論我國私立大專校院董事會與校長間之監督考核關係

A Study upon the Supervision Relationship between the School Legal Person’s Board and the President of Private Colleges and Universities

我國私立學校依私立學校法第2 條規定係由學校財團法人所申請設立，私立學校在法律上之權利義務主體係為：「學校法人」，而學校法人置有董事會，為學校之法定所有者，具有決策權，對外代表法人。又大學法第8 條規定大學由校長綜理校務，負校務發展之責，對外代表大學。是以，私立大專校院校長類似企業之執行長（CEO），為學校經營者之角色。另依私校法第41 條第3 項規定：「校長依法令及學校章則綜理校務，執行學校法人董事會之決議，受其監督、考核，並於職務範圍內，對外代表學校。」依其立法意旨，係指校長於執行職務範圍內，為學校負責人，對外代表學校，得為學校簽名，並受董事會監督及考核。惟如何進行監督考核，方不致干預大學自治或有礙校長之行政權，甚至影響學校師生之權益？厥為重要之課題。 我國私立學校法第29 條第1 項規定：「董事會、董事長、董事及監察人應依本法及捐助章程之規定行使職權，並應尊重校長依本法、其他相關法令及契約賦予之職權。」爰確立學校所有權與經營權分離之原則，明文規定董事會行使私校法所定之職權，應尊重校長之行政權。但實際運作上從董事會與校長間之監督考核及職權行使關係來看，卻未必如此，多有賴學校法人董事會和校長間之互動模式來決定，並且迭生爭議。 職是之故，本文旨在釐明私立大專校院董事會與校長間之監督考核關係。首先，探討私立大專校院校長與董事會間之契約關係，用以正確理解私立大專校院校長應如何進行選聘與解聘。繼而，從學校法人董事會之法律地位及私立大專校院校長之職權，論述董事會對校長之監督考核方式。最後，嘗試以高雄醫學大學董事會與校長間之紛爭為例，探究高雄醫學大學校長監督及考核辦法其具體規範內容之合法性與妥適性，從而釐明私立大專校院董事會與校長間之監督考核關係，以作為日後實務運作及研究上之參考！

According Private School Law Article 2: school legal persons shall apply to the supervisory authority for establishing private schools in our country. The subject of rights and obligations of private schools is the school legal person. The school legal person has a board of directors, which is the legal owner of the school, has decision-making rights, and represents the legal person externally. Furthermore, University Law Article 8 regulations university president responsible for the overall management of the university and development of academic affairs, and represents the university externally. Therefore, the president of a private college or university is similar to the CEO of an enterprise, and it is the role of the school operator. In addition, Private School Law Article 41(3): the president shall carry out decisions made by the school legal person’s board, which supervises the president and reviews his performance. However, how to supervise and review? It won’t interfere with university autonomy or impede the administration of the president. Even affect the rights of school teachers and students. It is an important issue. Private School Law Article 29(1): The board, the chairman of board members, board members and supervisors shall exercise their powers in accordance with the Law and the Rules, and respect the president’s powers as endowed by the Law, related regulations and contracts. Establishing the principle of separation of management rights from school administrative rights. The board shall exercise their powers in accordance with the Private School Law, and shall respect the president’s powers as endowed by the Law and the Rules. However, in actual operation, from the perspective of supervision and assessment and the exercise of relationship between the board and the president, this may not necessarily be the case. It much depends on the interaction model between the school legal person’s board and the president. As a consequence, the purpose of this paper is to clarify the supervision relationship between the school legal person’s board and the president of private colleges and universities. Firstly, the contractual relationship between private college president and the board should be discussed in order to understand how to employment or removal of the president correctly. Then, from the legal status of the board and the authority of the president of the private college to discuss the method about the board supervises and assesses the president. In the end, this paper tried to use the dispute between the board and president of Kaohsiung Medical University as an example to explore the legality and appropriateness of the Kaohsiung Medical University President’s Supervisory and Assessment Regulation. As a reference for future practice and research.