教師之身分保障與爭訟程序──從111年憲判字第11號判決談起

On Career Protection and Remedies of Teachers: An Analysis on Constitutional Judgment No.11 (2022)

行政法院向來認為公立學校與教師之間，係基於行政契約之聘任關係，公校對於教師所為之解雇，乃是行政處分。公校教師對於解雇決議得依教師法經由申訴程序後，提起行政訴訟。公立大學不服再申訴決定者，不得提起行政訴訟。不過，憲法法庭111年憲判字第11號判決指出公立大學不服再申訴決定者，得基於憲法保障之學術自由及訴訟權，提起訴訟。公立大學之不續聘措施為契約上意思表示，並非行政處分。鑑於本判決將對實務產生深遠影響，本文擬耙梳向來裁判見解，重新思考教師身分保障與救濟程序之發展方向。本文主張，教師法一體適用於私校，應不分公校私校，一律承認教師聘任契約之公法性質。解雇之法律性質，應是契約上單方形成權，不具有高權性質。至於契約之法律紛爭，基於債之相對性，只涉及契約當事人之權利義務，故於訴訟上應以契約當事人為訴訟當事人，亦無必要限制學校之訴訟機會。

The administrative court has held that the employment relationship between public schools and teachers is based on an administrative contract and that the dismissal of teachers by public schools is an administrative decision. The public school teacher may file an administrative lawsuit after going through the appeal procedure in accordance with the Teachers Act regarding the dismissal decision. If a public university refuses to accept the decision of the appeal procedure, it shall not file an administrative lawsuit. However, the Constitutional Judgment No.11 (2022) stated that public universities refusing to accept the decision of the appeal procedure may file a lawsuit based on academic freedom and the right to litigate as guaranteed by the Constitution. The dismissal made from public universities is a manifestation of intention in the contract, not an administrative decision. In view of the profound impact this judgment may have on the existing operation of practice, this article analyzes the judgments of courts and outlines possible future directions for teachers’ career protection and remedies. It is proposed that the Teachers Act applies to private schools as a whole, and the public-law nature of teacher employment contracts should be recognized regardless of whether they are signed by public schools or private schools. The legal nature of dismissal should be a manifestation of intention in the contract, and it does not have the nature of high power. As for the legal disputes of contracts, given the relativity of debts, only the rights and obligations of the parties to the contract are involved. Therefore, the parties of a contract should be the litigants in litigation, and there is no need to limit the school’s litigation opportunities.