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(釋字第 462 號 )      友善列印PRINT  
Interpretation
J.Y.
Interpretation
NO.462 
Date 1998/7/31
Issue (1) Under the Constitution, is a faculty member, who is dissatisfied with his/her evaluation committee’s decision over his/her career advancement, entitled to bring an administrative appeal and later an administrative litigation to challenge their decision? (2) What are the due process requirements for conducting a faculty promotion evaluation?
Holding   The authority of the faculty evaluation committee of each department, college and university over the faculty promotion review is a public authority with specified scope conferred by the law. The promotion decisions made by such a faculty committee are analogous to the decisions made on the promotion qualifications of university faculties by the Academic Performance Review Committee of the Ministry of Education. Both decisions have a significant impact on the status of faculties, such as qualifications, and therefore should be classified as administrative acts subject to administrative appeal and administrative litigation. An evaluated faculty member who is not satisfied with the decision and has exhausted all administrative remedies available in the Teachers Act or Administrative Appeal Act is entitled to bring administrative litigation to exercise the right of instituting legal proceedings guaranteed by Article 16 of the Constitution. The ruling of Precedent P.T. No. 398 of the Administrative Court in 1962 should no longer be applied to the extent that it is in conflict with the Interpretation rendered above.  

  The review of promotion qualifications of faculties concerns the quality of faculties and standards of teaching and research in universities and also the people’s right to work as well as the possession of vocational qualifications. To meet the principle of proportionality (Verhältnismäßigkeitsprinzip) requirement provided in Article 23 of the Constitution, such a review should be authorized by the law and the procedures promulgated by the competent agency should guarantee an objective, credible, fair and accurate evaluation of the professional, academic capabilities of the applicant for promotion. Since such evaluation procedures are set up to maintain the quality of academic research and teaching, the decision should be made based upon objective professional expertise and academic achievements. This is the essence of academic freedom guaranteed by the Constitution. Pursuant to such a principle of evaluation of expertise, the faculty evaluation committee of each department, college and university should first select competent experts or academicians in each particular professional field to conduct the evaluation and then report the evaluation to the committee for review. The faculty evaluation committee of each department, college and university should defer to the evaluation made by experts or academicians unless the committee can present definite reasons based upon academic expertise for questioning the credibility and accuracy of the evaluation. An administrative agency or an administrative court may review an evaluation in dispute to see if the relevant procedures have been followed and if the judgment or evaluation made is illegal or obviously inappropriate. Current provisions regarding faculty qualifications and promotion evaluation procedures in universities, independent colleges and junior colleges should be thoroughly reviewed and revised in accordance with this Interpretation.
Reasoning   Article 16 of the Constitution guarantees the people’s right to administrative appeal as well as to sue in a court of law. Such a right will not differ because of a person’s status. This has been reiterated repeatedly in Interpretations Nos. 243, 266, 298, 323, 382 and 430 rendered by the [Judicial] Yuan regarding people possessing the status of civil servants or others also involved in various litigations. There exists an administrative act regardless of the terms or modes employed therein, whenever 1) an administrative agency exercises public authority and unilaterally makes a decision over specific matters; or 2) an institute established in accordance with the law exercises public authority based either on direct authorization of the law or on authorization made by a competent administrative agency in accordance with the law over specific matters and unilaterally makes a decision over specific matters. This also has been reiterated repeatedly in Interpretations Nos. 296, 423 and 459 rendered by the [Judicial] Yuan.  

  The faculties in universities, independent colleges and junior colleges are divided into four levels: professors, associate professors, assistant professors and lecturers. According to Articles 18 and 20 of the University Act, Articles 8 and 24 of the Junior College Act provide that faculty promotions should be reviewed by the faculty evaluation committee of each department, college and university. The qualifications for teachers in schools of various levels are provided in the Educators Appointment Act. And Article 14 of this Act authorizes the Ministry of Education to promulgate the Regulations Governing the Screening of Qualification of University, Independent College and Junior College Teachers. Articles 7 and 9 of these Regulations provide that faculty qualifications should be reviewed first by the faculty evaluation committees of each school and then submitted to the Academic Performance Review Committee of the Ministry of Education for approval before a teaching certificate is issued. Article 41 of the same Act provides that the provisions of the Act shall apply, where appropriate, to the qualifications for teachers of private schools and the review procedures thereof. Therefore, faculty promotion decisions made by the faculty evaluation committee of each department, college, and university as well as of vocational academies are exercises of public authority with specified scope conferred by law. Such decisions have a significant impact on the status of faculties, and therefore should be classified as administrative acts. An evaluated faculty member who is not satisfied with the decision and has exhausted all administrative remedies available is entitled to bring administrative litigation to exercise the right of instituting legal proceedings guaranteed by Article 16 of the Constitution. The 1962 Precedent P.T. No. 398 of the Administrative Court ruling that, “only those people whose rights or interests are adversely affected by an illegal or inappropriate administrative act made by a central or local agency may bring administrative appeal pursuant to Article 1 of the Administrative Appeal Act, whereas civil servants of all levels suffering from disciplinary actions taken by the employing agency may not bring administrative appeal as the situation is different from the former,”should no longer be applied to the extent that it is in conflict with the Interpretation rendered above.

  According to Article 15 of the Constitution, the people’s right to work should be guaranteed. Therefore all kinds of proper jobs necessary for earning a living should be protected by the state, and any restriction on vocational freedom must be based on just reasons and cannot go beyond necessity. The review of promotion qualifications of faculties has an impact upon the quality of faculties, standards of teaching and research in universities, the right to work, as well as the possession of vocational qualifications. To meet the principle of proportionality requirement contained in Article 23, such a review should be authorized by law and the procedures promulgated by the competent agency should guarantee an objective, credible, fair and accurate evaluation of the professional, academic capabilities of the applicant for promotion. Since such evaluation procedures are set up for the maintenance of quality academic research and teaching, the decision should be made based upon objective professional expertise and academic achievements. This is the essence of academic freedom guaranteed by the Constitution. Pursuant to such a principle of expertise evaluation, the faculty evaluation committee of each department, college and university should first select competent experts or academicians in each particular professional field to conduct the evaluation and then report the evaluation to the committee for review. The faculty evaluation committee of each department, college and university should defer to the evaluation made by experts or academicians unless the committee can present definite reasons based upon academic expertise for questioning the credibility and accuracy of the evaluation. When necessary, the committee should provide the applicant with an opportunity to make a written or oral presentation during the review procedures. Where the committee is composed of faculties of non-relevant expertise, it may only consider factors such as quota, seniority, and teaching performance and should not decide on the academic capabilities of the applicant by majority vote. An administrative agency or an administrative court may review the evaluation decision under dispute to see if the relevant procedures have been followed, and if the judgment or evaluation made is illegal or obviously inappropriate. Current provisions regarding faculty qualifications and promotion evaluation procedures in universities, independent colleges and vocational academies should be thoroughly reviewed and revised in accordance with this Interpretation. 

' Translated by Dennis T.C.Tang.
 

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