私立大学の自治

―理事会と教授会の権限調整に関する考察―

抄録

１） A discussion of the autonomy of private universities should be based not only on the academic freedom mentioned in Article 23 of the Constitution of Japan but also on the freedom of association mentioned in Article 21. In other words, the autonomy of each private university should be granted according to its own foundation, history, and scale.

The problem of private university autonomy lies more with the problem of personnel management between faculty members and members of the board of directors than between the national and local governments.

The right of deliberation and autonomy relating to educational affairs, which is granted by a school juridical person to its faculty council, include (1) personnel management of the teaching staff, (2) educational management of the students and (3) school curriculum. These should be prescribed in accordance with the university's internal regulations such as school regulations and rules of employment enacted by the university board of directors. The relationship between the faculty council and the board of directors should be determined solely by the juridical person.

２） The personnel management of the teaching staff of a private university is restricted by the act of endowment and regulated by the school regulations and rules of employment. However, the details of management vary according to the situation of the university such as the scale of the school. The judicial decisions of courts differ as to whether they seriously consider either (1) the more complete university autonomy and the deliberation of the faculty council, or (2) claiming the theory of a self-governing society (the mere self-govern-ment of the group within the society).

Judgements of the courts tend to give higher regard to a private university's self-control (as a schooljuridical person) in order to maintain its internal order, as long as it does not break the law or interfere with the public welfare.