(Special Issue) On the Misconduct of Teachers With Administrative Duties at the National College and University: Centering on the Limits of Administrative Liability

Vol.&No.：Vol. 67, No. 2
Date：June 2022
Pages：185-211
DOI：https://doi.org/10.6209/JORIES.202206_67(2).0007

Abstract：
Universities are centers of teaching and research. Additionally, universities play an foundational role in social and economic development. In the United States, teachers are often regarded as social servants and are an indicator of their ability to implement curriculum. In Taiwan, article 1, paragraph 1 of the University Act states that the purpose of a university is “to research, nurture talent, enhance the culture, [provide] service to society and promote national development [...].” In addition, article 1, item 1 of the Junior College Act stipulates that “colleges and universities shall teach and promote applied science and technology, cultivate employability, and develop practical professionals.” Since 2017, Taiwan’s government has proposed and promoted projects such as the University Social Responsibility Practice Plan and the Higher Education Deepening Project, which focus on the implementation of university social responsibility (USR). USR encourages university teachers and students to improve their academic research and partake in social development activities. Therefore, Taiwan’s government should adopt a positive and supportive stance toward engagement with faculty members in off-campus professional activities and promoting USR.
This paper thus analyzes university teacher behavior from the perspectives of laws and regulations and behavioral management as well as the role of the state. The focus is on teachers who are engaging in supervisory duties.
Because this paper focuses on the analysis of academic theories and legal regulations, we adopted the qualitative research method of document analysis. The focal documents are mainly legal and regulatory documents, including Interpretation No. 308, administrative letters, court decisions, and impeachment cases of the Control Yuan. Additionally, we engage in a comparison of Taiwan’s relevant legal regime with those of other nations.
Ultimately, we determined that Interpretation No. 308 is not only at odds with Taiwan’s constitution and jurisprudence protecting the academic freedom of university teachers and universities’ autonomy but also with the principles of higher education administration. The central education administration still relies only on Interpretation No. 308 to maintain that the Civil Service Law and the related laws and regulations derived from it must be applied to university teachers who hold supervisory positions; yet, this violates the Statutory Doctrine of Higher Education established in constitutional jurisprudence and other interpretations of the Judicial Yuan. Although this article does not abandon the logic of the legal system, it provides some suggestions for the central educational administration to implement the "minimum necessary degree of purposeful supervision.” However, two actions are necessary to do so.
First, people may need to petition the Constitutional Court to reconsider or overrule Interpretation No. 308. This would be similar to urging the Justice Court to implement the Supplementary Interpretation that was mandated before the publication and implementation of the Constitutional Court Procedure Act. According to article 42, paragraph 2 of the Constitutional Court Procedure Act, which came into force in January 2019, if the people determine and judge that the legal norms that have been interpreted as constitutional by the Judicial Yuan or if significant changes in social circumstances occur, they may appeal to the Constitutional Court for review. If the academic community agrees that Interpretation No. 308 infringes on the autonomy of the university, the relevant parties should follow the provisions and procedures set forth in the same law to request the Constitutional Court to review whether Interpretation No. 308 remains appropriate.
Second, to implement the Statutory Doctrine of Higher Education in the administration of higher education and clarify the supervisory authority of the central education administration, this paper argues that the highest legislature of Taiwan should reference the Japanese Educational Civil Service Law or the precedent of legalizing national universities. Moreover, the legislature should clearly define the areas in which the state can intervene in national basic education and higher education to protect teachers and their rights. Doing so would improve the operation of the Taiwanese higher education system.

Keywords：separation of government functionary and teacher, purposeful supervision, teachers with administrative duties, higher education, malfeasance in public office

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