從中小學生權利救濟的解禁談學生的輔導管教

Lifting the Ban on Primary and Secondary School Students' Rights to Relief: Student Counseling and Disciplining

我國《憲法》保障人民享有相同的基本權利，但學生長期因特別權力關係的束縛而沒有爭訟之權。目前我國學生與學校之間為在學關係，透過《釋字第382號》賦予學生退學或類似剝奪受教權的處分時能具有爭訟之權；《釋字第784號》於公布後，學生只要權利受到侵害都能進行行政救濟，但這並不表示學生或家長能濫用訴訟，法官審理時還是會尊重學校，並以學校教育或管理的適切性來公平審理。教師、學校、教育主管機關、家長都應該一同為學生的教育權利努力以關懷輔導代替管教，減少師生衝突、營造友善校園、家長信任協力，學生將減少反抗與學校對立，學生爭訟情形將不會發生。

Students have lacked the rights to litigate because they have been restrained in the special relationships of power for a long time. Currently, the relationships between students and school authorities are regarded as studentships. According to the Judicial Yuan Interpretation No. 382, students are granted the rights to litigate when they are expelled from schools or received other punishments that deprive them of rights to education. According to the Judicial Yuan Interpretation No. 784, students are eligible to receive administrative relief as long as their rights are violated; however, this does not entitle students or their parents to abuse lawsuits. Judges must respect school authorities and hear a case in accordance with the relevance of school education and management. Teachers, school authorities, education authorities, and parents should provide care and counseling to students in place of disciplining to safeguard students' rights to education, thereby mitigating conflicts between teachers and students, facilitating friendly campus environments, and building trust and cooperation between students and their parents. Thus, students' resistance and opposition against schools will decrease, lowering the likelihood of student litigations.