Can't children manage now? On the Changes in Student Rights from the Interpretation of the Chief Justice

        Articles 7 to 22 of the Taiwan Constitution explicitly stipulate the protection of fundamental rights (such as the right to equality, personal freedom, freedom of speech, etc.), and Article 23 of the Constitution, the "principle of legal reservation," also explicitly states that the fundamental rights of the people shall not be restricted by law except for the purpose of preventing interference with the freedom of others, avoiding emergency situations, maintaining social order, or promoting public interests (Note 1). However, in the past, there were many "special power relationships" in society, which resulted in the neglect of the basic rights protection of specific people. This article mainly discusses one of the special power relationships that everyone has experienced - schools vs. students.

        1、 The Vacuum Zone of Constitutional Basic Rights Protection - Special Power Relations

        The so-called "special power relationship" refers to the state's overall control over specific people, such as civil servants, military personnel, prison inmates, or students, based on special legal reasons, and puts the specific people in a submissive position. In other words, the special power relationship emphasizes the superiority of the administrative subject and the obedience of the subject, and thus creates an administrative field that is exempt from legal domination. In this field, the administrative subject has a general regulatory power over the people, and the people cannot claim their basic rights. Disputes between the two parties usually do not seek relief from the court, forming a vacuum of basic rights.

        2、 Breaking the Special Power Relationship between Schools and Students

        In the past, it was widely believed in society that students should obey the education of their teachers and the management of the school, all for the sake of their own good. This is because students who are punished by the school cannot seek administrative relief from the school, and even if they are expelled from school for unreasonable reasons, they cannot seek relief from the court. The relationship between schools and students is a "special power relationship".

                However, due to the emphasis placed on the protection of basic rights in recent society, the vacuum of basic rights under the special power relationship in the past has gradually been filled in through the explanations of the justices of the Judicial Yuan. The high wall of special power relationship between schools and students has also gradually collapsed through the explanations of the following three justices of the Judicial Yuan. The following is a brief introduction:

        In 1995, the Chief Justice of the Judicial Yuan issued Interpretation No. 382 (Note 2), stating that if schools take disciplinary measures such as dropping out of school or other actions that could change students' identity and harm their educational opportunities, students can seek administrative relief from the court after failing to appeal on campus.

        This explanation indeed challenges traditional beliefs and creates a breakthrough in the special power relationship on campus, but other punishments that do not involve dropping out or changing the student's identity still prevent students from seeking court remedies.

        In 2011, the Chief Justice once again issued Interpretation No. 684 (Note 3), stating that even if the university's punishment of students is not a dropout or similar punishment, it should still allow students whose rights have been infringed to file administrative remedies, as guaranteed by Article 16 of the Constitution.

        This interpretation further fills the shortcomings of Interpretation 382, highlighting the concept of litigation rights protection of "where there is a right, there is a remedy". The object of available remedies is no longer limited to dropouts or similar actions that can change the student's identity, but extends to all violations of fundamental rights.

        If Interpretation 382 creates a breakthrough in campus special power relations, then Interpretation 684 completely demolishes a portion of the high walls of campus special power relations. Why is it just a part? Because the meaning of Interpretation No. 684 also creates another problem - only allowing "college students" to provide relief against school punishments, elementary school students, junior high school students, and even high school students who face school punishments, demerit recording, or other unreasonable behaviors, as long as there is no matter of dropping out or enough to change the student's identity, still cannot bring up relief and can only feel their noses to admit misfortune.

        3. Finally, in 2019, the Chief Justice issued the most influential Interpretation No. 784 (Note 4), completely breaking the special power relationship between schools and students. Originally, Article 16 of the Constitution guaranteed the right to sue for remedies, and students at all levels of schools, as long as their rights were violated by the school, could file administrative remedies in accordance with the law, requesting a fair trial in accordance with due process of law, in order to obtain opportunities for timely and effective remedies, It shall not be deprived solely due to differences in identity.

        This explanation breaks the traditional social concept of the special power relationship between schools and students. Combined with other justices' explanations (Note 5), it can be said that the theory of special power relationship has been completely abandoned in modern social concepts.

        3、 Too much is not enough? The world of uneducated and lawless students?

        However, just as the Chief Justice complied with the changes in the concept of safeguarding basic rights in modern society and declared the abolition of the special power relationship between schools and students, allowing students to seek relevant court remedies in accordance with the law when their basic rights were violated by schools, many people questioned this and believed that students would be lawless from now on, and schools would no longer be able to educate students well.

        In fact, the Chief Justice stated in his explanation letter No. 784: "The public power measures taken by schools to educate or manage students based on educational purposes or maintaining school order (such as learning evaluation, other management, reward and punishment measures, etc.) Whether it infringes on the rights of students still needs to be determined based on the provisions of the Administrative Litigation Law or other relevant laws, and on a case by case basis. In particular, the purpose, nature, and degree of intervention taken by the school should be considered as a whole. If the intervention is obviously minor, it is difficult to say that it constitutes an infringement of rights. Even if it constitutes an infringement of rights, students may file administrative disputes to request relief. Teachers and schools still have room for professional judgment in their education or management measures, and courts and other administrative litigation agencies should give high respect, which goes without saying

        In plain English, the management measures taken by schools for legitimate purposes such as education, if only minor intervention in students' rights, will basically not constitute infringement on students' rights; Even if it is deemed a violation of rights, the court should in principle respect the professionalism of schools and teachers in educational management, and only consider the legality of management measures.

        Initiating a lawsuit and winning a lawsuit are always completely different things. The process from prosecution to judgment is a long one, and granting relief "opportunities" is not equivalent to ensuring that the court will accept the lawsuit. Whether students can file an administrative lawsuit if they are not satisfied, or whether they meet the requirements for prosecution according to the provisions of the Administrative Procedure Law. Even if an administrative lawsuit is successfully filed, the court will make professional judgments based on the specific circumstances of the case, We will not easily allow excessive prosecution to occur.

        In short, from Interpretation 382 to Interpretation 784, it symbolizes Taiwan's progress as a rule of law country, fully implementing the constitutional function of safeguarding people's basic rights, and ensuring that students do not lose the opportunity to seek judicial relief due to different identities. Ultimately, the only goal is to protect students from any "illegal or obviously unreasonable" infringement, And there is no difference because the source of infringement comes from within or outside the campus.

        Comment:

        1. "Power" refers to the power conferred by law on government agencies to perform official duties, corresponding to the English word "Power"; 'Rights' refer to the private rights of the people guaranteed by law, equivalent to the English word' Right ', which refers to the' fundamental rights' guaranteed by the Constitution in the text.

        2. Interpretation No. 382 by the Chief Justice of the Judicial Yuan: Schools at all levels, in accordance with relevant student registration rules or punishment regulations, may withdraw from school or engage in similar disciplinary actions against students, which is sufficient to change their student identity and harm their opportunities for education. Such disciplinary actions shall have a significant impact on the right to education in the People's Constitution. Such disciplinary actions shall be administrative sanctions in the Petition Law and Administrative Litigation Law. Students who have been punished and have exhausted the channels of appeal within the school but have not received relief may file petitions and administrative lawsuits in accordance with the law. The Administrative Court's Judgment No. 6 of the 41st year, which does not comply with the above intention, should not be invoked to comply with the constitutional protection of the people's right to education and litigation rights.

        3. Interpretation No. 684 by Justice of the Judicial Yuan: Administrative or other public power measures taken by universities to achieve the educational purpose of researching academia and cultivating talents, or to maintain school order, that infringe upon students' right to education or other basic rights, even if it is not a disciplinary action such as dropping out of school, and the intention of having rights and remedies under Article 16 of the Constitution, should still allow students whose rights have been infringed to file administrative disputes, No special restrictions are necessary. Within this scope, the interpretation of Interpretation No. 382 of this court should be changed.

        4. Interpretation No. 784 by the Chief Justice of the Judicial Yuan: In accordance with the purpose of Article 16 of the Constitution to protect the right of the people to litigation, when students at all levels of schools acknowledge that their rights have been infringed upon due to public power measures such as education or management, even if it is not a disciplinary action such as dropping out of school, they may, according to the nature of the relevant measures, initiate corresponding administrative litigation procedures for relief in accordance with the law, without the need for special restrictions. Within this scope, the interpretation of our court's Interpretation No. 382 should be changed.

        5. Interested readers, please refer to the official website of the Judicial Yuan for Interpretation No. 755 (Prison inmates) and Interpretation No. 785 (Civil Servants). Based on the introduction of special power relations in this article, we believe that we can have a further understanding of special power relations.

        Image source: freepik

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