教師身分變更的行政救濟──憲法法庭111年憲判字第11號判決後實務的新發展與挑戰

Administrative Remedies for the Change of Teacher Status－New Developments and Challenges in the Judicial Practices after TCC Judgment 111-Hsien-Pan-11

有關公、私立學校對教師解聘、停聘及不續聘的法律性質，學說及實務爭議頗多。就公立學校部分，經最高行政法院98年7月份第1次庭長法官聯席會議決議認定為行政處分後，實務已有一致作法，並運行長久。不過，憲法法庭111年憲判字第11號判決後，最高行政法院變更見解，改認定為行政契約的意思表示，衍生從行政處分轉換成行政契約的法適用變遷與爭議。本文旨在呈現審判實務見解變遷的前因後果，變更後的見解固然解決了部分爭議，但也產生新的爭議，有待實務後續發展。

There are many academic and justice practical controversies regarding the legal nature of dismissal, suspension and discontinuation of employment of teachers in public and private schools. As for the public schools, after the Supreme Administrative Court in July 2009 determined that it was an administrative sanction, a consistent practice has been established in justice practice and has been in effect for a long time. However, after TCC Judgment 111-Hsien-Pan-11, the Supreme Administrative Court changed its view and recognized it as a declaration of intention in an administrative contract, which led to changes in the application of law and disputes in the conversion from administrative sanctions to administrative contracts. This article aims to present the causes and consequences of the changes in opinions on trial practice. Although the changed opinions have resolved some disputes, they have also generated new disputes that await subsequent development in justice practice.