教保服務人員不當管教案例暨相關法律問題探討：以新北市訴願1070120894號決定為例

本文旨在探討教保服務人員因「不當管教」遭解聘並被通報不適任教保服務人員所衍生的相關法律問題。本文透過法規研究、制度研究以及案例研究等途徑，輔以個案與文獻分析為研究方法，從幼兒園教保服務人員不當管教涉及法規範解釋與適用出發，考察行政爭訟案例及實務處理模式。研究中發現，實務運作缺失包括權限劃分不清、主管機關於行使裁量權時亦有怠惰裁量之嫌、教育局函告幼兒園解聘教保人員亦未通知當事人，此在組織與程序保障未盡周全。本文認為，法制施行伊始應明確機關管轄權限，主管機關應正當行使裁量權。同時，攸關憲法工作權保障宜完備組織，並恪遵正當法律程序以符法治國家保障人民權利之核心理念。

關鍵字

不當管教；幼兒權益；教保服務人員

並列摘要

Purpose of this paper is mainly to discuss relevant legal issues derived from preschool educators being dismissed and determined incompetent for preschool educators in a written notice due to ＂improper discipline＂. This study was conducted through researches on laws and regulations, systems and case studies, as well as case and literature review. In this paper, administrative litigation cases and current practical treatment modes were reviewed from the interpretation and applicability of laws and regulations on improper discipline of kindergarten educators. It was found in this study that defects of current practices included unclear division of power. Competent authority might also exercise inactive discretion. In addition, the Ministry of Education failed to inform the related person when notifying the kindergarten of dismissing the preschool educator in writing. It was an improper act in terms of organizational and procedural guarantee. In this paper, it is believed that from the beginning of execution of laws, jurisdiction of relevant authorities shall be expressly defined. Competent authority shall exercise its discretion properly. In addition, guarantees critical to constitutional right to work should be provided with complete organization and procedures to meet relevant laws and regulations.