透過您的圖書館登入
IP:3.91.19.28
  • 學位論文

高中學生權利與校園規範法治化之研究

A Research on High School Students' Rights and the Legalization of High School Regulations

指導教授 : 林安邦

摘要


摘要 台灣社會的開放與脈動連帶著改變台灣教育環境,從零體罰到解除髮禁甚至要求學生自主組織學生自治會以民主參與之方式共同決策校務與運作,此一連串的教育轉變可謂使學校一步步邁入民主法治化之新紀元,而造成學校高權之瓦解並非一蹴即就,而是隨著台灣社會貫徹法治國精神之實踐,打破長久以來學校與學生之間特別權力關係之枷鎖,學生不再是學校主宰之客體亦非國家利用教育行政機器所欲達成社會控制而試圖教化與馴化之群體,此現象可被視為行政程序法自民國88年2月3日公布以來規制保護人民權利並限制政府權力行政法原理作用下相互映之表現,除此之外,高中公民與社會科成為新興學科毋寧係對於學生權利意識覺醒與啟蒙發揮催化劑作用,經過高中公民與社會科法治教育之賦權過程,學生開始理解自身權利之保護,透過法治教育之洗禮,學生得以檢視學習環境中法治觀念欠缺之處,透過倡議、發展學生論壇平台,學生開始向教育體制挑戰,而經由學生「做中學」漸進式之溫和抵抗,教育體制開始傾聽亦開始改革,然而校園環境中享有教育管教權限之教師社群中亦存有相歧異之看法與執著而不斷著衝突著,而目前尚未取得平衡。 從國際環境來論,台灣身為國際社會之一員,尊重民主潮流乃為台灣加入國際社會能力與誠意之表現,隨著兒童權利公約(CRC)在國際上受眾多民主國家之重視,儼然亦成為評價民主國家人權表現檢核之指標,這一股國際上對於兒童(係指18歲以下之人)人權之重視,也影響著國內教育環境與之配合,從教師輔導與管教辦法、學生獎懲規定、學生自治組織、校務會議運作學生參與、行動載具使用規則、服裝儀容規定之制定,無不遵守正當法律程序中民主理念,學生參與與校園民主治理成為決策校務運作程序之必要精神,而在全體社會中,為求民主參與展現層面更為普及,儘量擴大公民參與群體亦符合兒童權利公約所揭示表意權利之核心價值,是故當代對於降低公民身分年齡為18歲之普及措施成為當代憲政改革朝野共識,可期待著將來高中校園將存有合法公民身分(18歲之公民)之部分群體,而教育體制如何給予未來公民資質與身分之教育培養將成為教育單位所面對之重要課題,然而教授學生民主素養與實踐並非公民與社會科之教師單一責任,從行政單位至教學單位皆屬教育之一環,皆應以民主法治之精神從事教育工作,然而教育現場之資深教師若從自身求學經驗與其意識型態可能非全然符合當代社會之民主要求,另外,為尊重學生自主性與給予表達意見機會而令學生代表加入決策則也可能因為資訊不對稱或權利不對等而使學生淪為形式主義之橡皮圖章,此皆為當前所存在之難題。 從學生事務層面來論,高中學校與學生間之緊張階級關係亦逐漸朝向開放平等關係邁進,自大法官釋字382號解釋經釋字684號解釋至釋字784號解釋三個學生權利發展之里程碑,學校與學生之間特別權力關係從僅有改變身分關係之教育措施被視為行政處分,經大學學習階段之學生從特別權力關係中獲得解放,至釋字784號解釋揭示不應區分學生所處之學習階段而給予行政救濟上之差別待遇,高中學校與其學生間即因此進入一種特別法律關係型態之新關係,於此同時,教育部逐項檢視學校對於學生教育措施之合法正當性,不論係涉及學生身體自主與穿著自由之服儀規定、規範教師對於學生施以德性教育措施之教師輔導與管教辦法、對於學生不良行為所為獎勵與懲罰之規定、乃至於學生申訴程序等皆進行大規模之調整已配合法治需求與國際規範。 本研究試圖以高中學校與高中學生間之權利義務關係作為研究主體,針對上述重大變革之項目逐一研析與評論,並提供相關修正意見,期待本研究得增進當代教育學界對於高中學校與其學生之間互動與所依循知之法律規範之瞭解與修正,並能引導相關研究之投入。 本研究發現由於相關法制變革使得高中學生身分產生本質上之變動,然而校園規範卻尚未因應配合修正,導致校園規範尚未符法治要求,因此本文建構現今高中學校之法治規準以此對於尚待修正之校園規範進行修正與建議,希冀高中學校教育措施能服膺釋字784號保護學權之意旨,最後期待透由校園規範法治化研究成果能發揮導引校園管理邁入法治發展之作用。

並列摘要


Abstract Judicial Yuan Interpretation No.784 can be regarded as a milestone in the development of high school students' rights. Since the Japanese Colonial Period and the Martial Law Period in Taiwan, high school students have been in a "special power relationship" with high schools. The conservative atmosphere in high school campuses has been under the obedience to the legal authority structure, which is "ordered by the top and obeyed by the bottom", and through the educational mechanism, the unequal status of "teachers and students" has been maintained and used as a means to achieve social control. After the lifting of martial law, student rights are also moving towards rule of law in the wave of democratization. With the completion of Interpretation No.382 and 684, students at the university level and above began to shake off the shackles of traditional administrative jurisprudence`s "Special Authority Relationship " and began to be empowered to engage in administrative litigation in the face of educational disciplinary measures that did not conform to the principles of administrative law. However, on the other hand, the development of high school students' rights diverged from the development of students' rights above the university level after Interpretation No.684. Until the completion of Interpretation No.784, the development of high school students' rights entered a new era of sound "rights protection," but the completion of this interpretation did not happen overnight, instead it followed the progressive rolling amendment process of Taiwan's administrative jurisprudence environment. First, the emergence of the subject "citizenship and society" transformed the concept of human rights and the rule of law into the seeds of enlightenment for high school students' rights awareness and laid the theoretical foundation for high school students to resist oppression on campus. Also, high school management must operate according to a democratic process model, which includes students' participation and opinions. Second, with the emergence of the Administrative Procedure Act, the administrative jurisprudence environment has evolved, and the way of education for students in high schools has evolved from "management" to "supervise" in response to the deepening influence of democracy concept and rule of law. From each school's guidance service to establish and operate the high school student council to the right of student participation in school synods, the democratic model of educational administration has led to a new type of school-student relationship in high school campus democracy. Third, as a global actor, Taiwan must always pay attention to international trends, and one check item of international human rights is the advancement of human rights in schools. The Convention on the Rights of Children places great emphasis on international children's leisure and expression rights, and the Ministry of Education in Taiwan has formulated related policies to meet international human rights standards and revised supporting measures. Therefore, the combination of domestic, international, and internal school forces has led to the creation of Interpretation No.784 and has created a fresh turning point for the development of high school students' rights. With the emergence of Interpretation No.784 and the changes in the overall environment, the development of high school students' rights is now in an ongoing process of shaping, but few academic studies are focusing on the rights of high school students. Thus, this study will take the development of high school students' rights as the main thesis of research and use image analysis of the legal norm framework as the research approach. If high school is a small national society, the law that restricts the administrative power of schools should also play the role of protecting the high school students` rights. Therefore, the analysis of "The Regulations for Counseling and Discipline of Students by Senior High School Teachers " has become the core of educational administrative law research. In addition, high school students' misbehavior also corresponds to their written disciplinary actions by schoolteachers. However, the products of feudal education before, such as "compulsory patriotic behavior," "love ban," "strict prohibition of encouraging campus upheaval," and " gender binary opposition legal system" are incompatible with today's democratic, open, and rule of law society. Therefore, this study also takes the current " Student Recognition and Discipline Regulations" as another important part of the investigation and uses the " Common Errors of Student Recognition and Discipline Regulations List" made by the Ministry of Education on the existence of outdated student punishment regulations as the analytical context of this study. In addition, dress code issues involving students' performance and freedom of dress have always been a concern for education administrations and high school students. The tug-of-war between collective communitarianism and individual liberalism representing the educational value of different ideologies and obligatory position on students wearing school uniforms will be included in the scope of this study. At the same time, the issue of common smoking among high school students in the educational field will also be included in this study. Besides, in this section, the study will focus on the effectiveness of the "time" and "place" of school rules in terms of schoolteachers' discipline and counseling of students' misbehavior in and out of school, as well as during and after school, respectively. As mentioned above, The Ministry of Education has stipulated that each high school should provide guidance service for students to establish "student government" as a representative organization for the implementation of students' rights to express their opinions. Hence, this study analyzes the guidance service of high schools in counseling students to establish student councils and the subsidiary considerations that ought to be taken. Additionally, if a high school student's rights are violated by high schools or teachers unlawfully or improperly, the internal grievance system of high school is different from that of university students. With the completion of Interpretation No.784, the high school student grievance system should also be the scope of this study and is supposed to be beneficial. This study is a pragmatic study that aims to contribute to the field of high school students' rights development and to set an example for others to follow. It is also used as a reference and correction for high school schools and teachers in disciplining and counseling students. Although the study is not fully developed and may exist a lack of consideration, and there is still room for discussion and refinement in providing negative reference materials, it is still expected that the study will help improve academic theory and practice of high school students' rights in the direction of thoroughness and completeness.

參考文獻


壹、中文文獻
一、中文書籍
司徒懿(譯)(2009)。簡明質性研究法分析(原作者:Carol Grbich)。台北市:韋伯文化。(原著出版年:2007)
王錦雀(2005)。日治時期:臺灣公民教育與公民特性。台北:臺灣古籍。
李惠宗(2015)。中華民國憲法概要。台北市:元照。

延伸閱讀