Nation Supervisions in Aspects of Constitutional Protections for Private Universities
Date Issued
2008
Date
2008
Author(s)
Lin, Shu-Chen
Abstract
The globalization has led countries demographic change of higher education policy in the world. But in terms of the issues of higher education or the distribution of the budget, our country is still focused on National Universities rather than private universities. As a result, there is the imbalance between public and private universities. As the matter of fact, Taiwan''s development model of higher education has been changed from "elite mode" to "universal mode" regardless of the number of university or students of private universities represents more than 65 percent of the total. Therefore, the responsibilities of private universities in the higher education system should deserve more concerns. However, the interaction between Taiwan''s government and private schools has often been criticized. Before the private school law to be amended in 2008, private schools under the "foundation system" have been most stringently supervised, which makes private schools as subordinate bodies of the Ministry of Education. Despite the law has its preventive mechanism, the operations of private schools in general are still serious problems. This evidences that there are serious gaps between the law and the practice. In January 16, 2008 the private school law was amendment and private schools are free from more supervisions in general. In light with the constitutional protection of human rights, we have to rely on the legal system and the concept of human rights in the Constitution in order to meet the objection. The human right is an important system in the constitution. We must carefully analyze it to maintain its subtle position under the increasingly complex social system and the empirical method. However, legislators in the legislative process regarding the social development, legislators’ political idea, negotiation of political parties and allocation of resources represent more importance over the constitution in various aspects. Thus, the framework of the Constitution is easily overlooked. As a result, the gap between the effectiveness of the administrative principles and the law principles often exists. As to how to formalize the constitutional protection over private universalities, the government plays an important role. Therefore, this paper has the intensive review of the justification and reasonableness over the constitutional protection of human basic rights in Taiwan as well as other countries. First of all, in the chapter of the Constitutional protections for private universities, it gives the interpretation as a whole from the view points of education and Constitution security system. It regards the Constitutional security for human dignity, the freedom of personality development, the freedom to teaching, the right to education and the award and grant to private education in the fundamental national policies as one role of the education Constitution’s security to guarantee and limit their concept that applicable to the basic rights. In the chapter of state intervention in the private schools, it confirmed that private schools are different from public schools in their types of operations. With the feature of independent development, the private school is entitled to have fully autonomy in the organization, personnel matters and finance in order to show flexibility and vitality for reaching its purpose. In addition to protect their original demands for the right to freedom, countries should also protect their demands for sharing the national payment. While the state power should keep the purpose of important public interests, and means in concur with the principle of proportionality in order to maintain and implement the spirit of constitutionalism. In the chapter of the border and basic rights conflict problem of private university autonomy and state power, it established the judgments between basic rights such as the private university''s academic freedom, university autonomy and the right to freedom of religion etc. Moreover, it established the abstract measurements of benefit for the problem of basic right conflict, which enables every aspects of basic rights conflict to implement their biggest basic rights. In the chapter of the constitutional order discussion about measure types of supervision on private universities, it discuss the constitutionality of the supervision on school’s internal affairs, finance, exit and merging, university operation and other measures of supervision in order to identify the rights border between state power and private schools under the spirit of the constitution and taking them as models for improving Taiwanese laws.
Subjects
Human Rights Protection
Separation-of-power
Legitimacy
Due process of law
Legislative Discretion
Type
thesis
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