國家教育研究院

　　過去對於教育人權乃有學者指出：「有關『學習權』、『教育權』與『受教育權』的內涵，究竟存在著何種差異，還是它們只是一些同義詞?」的疑問。現今我國教育基本法雖已明確地宣示保障人民學習及受教育之權利(同法第一條)，同時，亦確認人民為教育權之主體(同法第二條)。但是，由於學說上的討論，難以釐清個別權利之間的相同處抑或相異處，致使實務上亦出現有如臺北高等行政法院八九年訴字第一八三三號判決般地令人難解的例子。因此，本文乃試圖以日本國憲法學說為借鏡，嘗試性地回答前述學者所提出的質疑。

　　In 1976, the Asahikawa Proficiency Test case (Japan v. Sato et al) was happened and give a great influence to every people who concern about children’s education and the human right to receive an education. The supreme court of Japan made quite important conclusion about the Article 26 in the constitution of Japan by grand bench. For example, they said:「…each citizen, as an individual and as a community member, has an innate right to the training necessary to grow, develop, and realize the potential of his or her character; specifically, that a child, who cannot educate himself, has the right to demand an education from adults generally.」. Based on this kind of thinking, this article is trying to review what kind of situation about the human right to receive an education in Taiwan. And as we all know, in 1999, Taiwan had constituted the Fundamental Law of Education. In this law, the right to study has been indemnified. However, this article is trying to say the right to study should be a human right, and the human right to receive an education should based on that kind of basis to make everyone (especially children) who live in Taiwan could enjoy this kind of human right to develop him or herself character well.