ปัญหาทางกฎหมายของสัญญาจ้างบุคลากรทางการศึกษาในสถาบันอุดมศึกษาของรัฐและเอกชน

Abstract

Admistrative contract is a part of the administrative act employed as a public administration instrument. It assists to maintain the continuous service for the Public. The Administrative contract, therefore, has a nature as a public law contract where the legal relationship is based on inequality of power between the parties concerned. For this reason, if a tort or a breach of administrative contract occurs, it will affect the public, as a whole.

Disputes concening administrative contract is one type of administrative cases fallling within the jurisdiction of the Administrative Court. As for what the administrative contract is, can be understood via the consideration of "administrative contract" as defied by section 3 of the Act on Establishment of Administrative Court and Administrative Court Procedure, B.E. 2542 (1999) as "administrative contract" includes a contract which, at least one of the parties, is an administrative agency or a person acting on bahalf of the State and which exhibits the characteristic of a concession contract, contract providing public service or contrct for the construction of public works or for the exploitation of natural resources". It can be said that the administrative contract has a broad meaning. This includes the contract as defired and other contracts as condsidered by the Administrative Court and the Commission on jurisdiction of Courts.

From the research, it is found that both state and private higher education institutions employ their personnel via an employment contract, which has a satatus as an administrative contrct. This is because such personnel shall involve in a public service and the institutions, themselves, design the content of the contract causing inconsistency and also having a dispute before the Administrative Court.

It can be recommened that a draft of a Ministerial regulation concerning the labor protection, and compensation and benefits of personnel in a state higher education institution shall be introduced as a framework for making a fair empkloyment contract. In addition the Ministerial regulation concerning the labor protection, and compensation and benefits of personnel in a private higher education institution, B.E. 2549 92006) should be amended, probided that "employment contract dispute shall be filed to the Administrative Court".