论文关键词 受教育权 法律关系 权利救济
Keywords legal relation of right to receive education right relief
现行宪法颁布以来，受教育权一直是理论界研究的热点，学者们以科学、实用的态度开展了受教育权的探讨，从不同角度阐述受教育权的概念、本质、法律关系等理论问题，学术上出现了许多理论创新和有代表性的作品，主要研究成果综述如下：
Since the current constitution, the right to education is the focus that theory circle studies, scholars with scientific, practical attitude to carry out the study of the right to education, the right to education, expounds the concept of essence, legal relationship theory from different angles, the academic has appeared on many innovative theory and representative works the main research results are summarized below:
一、受教育权理论的主要观点
The main point of view, the right to education theory
由于现行《宪法》、《教育法》、《未成年人保护法》、《行政复议法》等条文中涉及的“受教育权”内涵，没有相应的解释和法律上的界定，学者们对受教育权的定义、本质、内容及相互关系等问题众说纷纭。
Due to the current "constitution", "Education Law", "law on the protection of minors", "Administrative Reconsideration Law" provisions relating to the "right to education" meaning, does not define the corresponding explanation and law, scholars of the right to education Public opinions are divergent. definition, essence, content and mutual relations and other issues.
（一）受教育权的定义
(a) the definition of the right to education
关于什么是“受教育权”，学者们见仁见智，定义各不相同。有的从受教育的途径、场所以及学习内容来定义，有的从国家保障义务来定义，有的从促进人的发展角度来定义，有的结合人的发展和国家的保障义务来定义，如龚向和认为：“所谓受教育权，是指公民依法享有的要求国家积极提供均等的受教育条件和机会，通过学习来发展其个性、才智和身心能力，以获得平等的生存和发展机会的基本权利。”这些定义大多数是从宪法的角度，从国家作为义务的主要承担者的角度去概括，而忽略了公民受教育权的行使涉及的义务主体除国家之外还有教育机构、监护人和其他主体，这是一个缺陷，需要进一步完善。现实中形形色色的受教育权纠纷，有许多并非是受教育者和国家的争议，而是受教育者与学校、监护人、其他组织或个人的争议，按照我国学术界的主流定义方式，受教育权是公民向国家要求学习的机会和条件，那么这些纠纷就不能称之为受教育权纠纷，这显然难以自圆其说。
About what is the "right to education", Different people, different views. scholars, the definition of each are not identical. In some way, from education and learning content sites to define, some from the national security obligations to define, some from the perspective of promoting human development to define, some combination of human development and national security obligations to define, as Gong Xianghe said: "the so-called right to education, citizens are entitled to request the state actively providing equal educational opportunities and conditions, to the development of their personality, talents and abilities through learning, to the basic rights of equal survival and the development opportunity." Most of these definitions is from the perspective of the constitution, as the main obligations of the angle from the national to summarize, while ignoring the exercise of citizens' right to education involves the obligation subject except the country outside and educational institutions, the guardian and other subjects, this is a defect, the need to further improve the. The right to education of every hue disputes in reality, there are many is not affected by educators and national controversy, but the educated and the school, the guardian, other organizations or individuals of the dispute, according to mainstream definitions in academia, the right to education is the citizen to the state requirements of learning opportunities and conditions, then the disputes can not be called the dispute of right to education, it is obviously difficult to make out a good case.
(two) the essence of right to education
受教育权的本质解决的是受教育权是一种什么样的权利，权利的实现对受教育者有何意义。日本学者对受教育权本质的认识经历了从政治权利的公民权说到生存权说再到学习权说三种学说的演变，这三种学说曾被我国学者多次援引，例如龚向和从人权理论的角度来观察受教育权本质学说的演变，提出受教育权本质的认识有四种学说：公民权说、生存权或社会权说、学习权说、发展权说。
The essence of right to education is to solve the education right is a kind of what kind of rights, the realization of the right to have what significance for the educated. Japanese scholars have gone from the political rights of the citizen rights when it comes to existence right to learning right say evolution of three theories for understanding the nature of the right to education, the three theories have been repeatedly quoted Chinese scholars, such as Gong Xianghe from the human rights theory perspective to observe the essence of right to education theory evolution, proposed the understanding right to education is the essence of four theories: civil rights, social rights said the right to life or to say, learning right, development right to say.
关于受教育权的本质，公民权说和生存权说遭到的质疑比较多，两种学说过多地从政治和经济的角度对受教育权加以阐释，忽视了人的丰富性和人的目的地位。目前较为流行的四种学说中的“发展权说”，实际上已被“学习权说”所吸收。20世纪80年代以后，学习权说被国际社会普遍接受。学习权包含了学习自由（主动学习）与受教育权（被动学习）。它强调了受教育者在教育过程中的主体地位，强调了主体在享受受教育权利时的主动性与自由性，远远超出了“接受教育”的含义，最接近受教育权的本质，但也不能以学习权的概念取代受教育权，因为受教育权是学习权中的一部分，即经他人协助下的学习权。
On the nature of the right to education, civil rights and survival rights said doubt is more, the two theory too much from political and economic point of view, the right to receive education is explained, ignore the richness of person and person's destination. The right to development of four kinds of theories at present more popular in the "say", in fact has been "learning right, said" the absorption. In twentieth Century, after 80 years, the right to learn that is accepted by the international society. Learning right includes freedom of learning (active learning) and the right to education (passive learning). It emphasizes the educated subject status in the process of education, emphasizes the main initiative and freedom in the enjoyment of the right to education is, far beyond the "education" of the meaning, the most close to the essence of right to education, but also not to replace the concept of learning right, right to education, because education right is a part of learning rights, namely the right to the assistance of another person to learn.
(three) the right to education legal relationship
China's current "constitution" forty-sixth paragraph first: "citizens of the people's Republic of China has the right and obligation to receive education". The provisions of the current constitution of this, scholars still doubt, education what is right or obligation, rights and obligations of the so-called educated consistency or double what is reflected? What are the rights and obligations of the principal point? Rights and obligations of the main subjects are the same?
从受教育权的构成看，权利主体是具有中国国籍的人。义务主体是谁？是否同权利主体的范围一致？由于受教育权是一项权利构造较为复杂的权利，在公民受教育的过程中，除了国家提供教育机会和条件，学校、教师、父母等主体也会以不同的身份或形式参与进来，在教育上也享有特定的权利和义务。同时，受教育权对应的相关义务又包括消极的不侵犯公民受教育权的义务与积极保障公民受教育权的义务，消极义务与积极义务的承担主体是不一致的、不同一的。消极义务即不侵犯公民受教育权的主体具有广泛性，任何公民、社会团体、企事业单位、国家机关都不得侵犯公民受教育权的享有与行使。那么，受教育的积极义务的承担者是谁呢？根据宪法精神，国家是受教育积极义务的承担者。因此，受教育权的义务承担者，不仅包括国家，还包括教育机构、监护人和社会上的其他组织或个人。受教育权的权利客体，简单地说，就是教育，包括一切种类和一切级别的教育。
From the constitution of the right to education, the subject of rights is Chinese nationality. Who is the subject of obligation? The scope of subject of right agree with? The right to education is a right of complex right, in the process of civic education, in addition to the state to provide educational opportunities and conditions, schools, teachers, parents and other subjects will also participate in a different identity or form, also enjoy certain rights and responsibilities in education. At the same time, the relevant obligations corresponding to the right to education and negative does not infringe upon citizens' right to education obligations and actively protect the citizen's right to education is compulsory, subject to take on negative and positive obligations obligations is inconsistent, the same. Negative obligation shall not infringe upon the body of citizens' right to education is universal, any citizen, social organizations, enterprises and institutions, state organs shall enjoy the infringement of citizens' right to education and exercise. So, who is the positive obligation education undertaker? According to the spirit of the constitution, the state is to assume the positive obligation education. Therefore, the right to receive education obligations, including not only the state, but also other organizations or individuals, educational institutions and society's guardian. The rights of the right to education, simply put, is education, including all types and all levels of education.
In the legal relationship of the right to education in the debate is the largest of the right to education content, because the scope of our constitution does not expressly for the right to education and boundaries. Some scholars believe that includes three aspects, the first is the right to learn. Second compulsory education free style. Third is the equality of educational opportunity. Gong Xianghe according to the time sequence, into the initial stage of the "learning opportunity right" (including the entrance opportunity right, education right to choose, students ID rights), stage of the process of "learning conditions right" (include the right to request the construction conditions of education, education, education funding conditions using the right to obtain the right end of the stage), the "right to success in learning" (including the right to obtain fair evaluation, academic, degree certificate authority), from the point of view of the existing educational legislation, the right to education includes three aspects, namely, free compulsory education, education equality of opportunity, and the choice of education freedom. But the freedom of choice of education in the compulsory education stage, there are private schools with freedom, not including in choosing among public schools free, in non compulsory education, including the choice of whether to accept the education freedom, choose different types of Education (such as occupation education or general education) freedom, and freedom to choose which school the. In short, the right to education of the content to be determined by national laws, at the same time, by the international human rights law constraints under international human rights law, the right to education of the minimum core content, need to all contracting parties undertake and achieve immediate. As international human rights law of the States parties, China should refer to the international human rights law's right to education is the core content, determine the scope of the right to education in China and in the limit of legislation.
(four) the legal right to receive education disputes involving
The right to education disputes involving participants included the educated, education administrative body, the school, the guardian and other social organizations and individuals. Among them, the educated and the education subject of administrative dispute, the legal relations belong to the administrative legal relationship is pure; the educated and the parents or other guardians of disputes because education problem, belongs to the civil legal relation; other agencies other than the educated and educational institutions will organization or individual disputes of right to education, belong to the basic between civil subjects of infringement disputes, also can be the civil legal relationship classified. Dispute the right to education education only occurs with the school or other educational institution, Public opinions are divergent. qualitative is the legal relationship. Jurisprudence legal relationship on the educated and the school, generally have special power relationship theory, general administrative law relations theory, educational contract relation, the agent relationship and the relationship between the said monitoring of civil and administrative has five theories, but the first four theories are unable to cover the educated all education levels and types of education, only relationship civil and administrative doctrine has been widely adopted in practice. But the theory itself has some defects, such as school "the school rules and regulations according to the" decision of students drop out and expulsion from the University, which belongs to the autonomous authority, because there is no authorized by national law, the party rights can not get effective remedy. Therefore, it is necessary to break through the traditional "authorized administrative entity" theory, introducing the concept of "autonomous administrative entity".
对于学校与学生就受教育权纠纷所涉及的法律关系，我国可以借鉴日本和我国台湾地区的做法，将“特别权力关系说”发展为“基础关系与管理关系说”。涉及基础关系的学生身份的取得、丧失及降级等决定，都属于可诉行政行为。其他如对学生的服装、作息时间、宿舍管理规定等都属于管理关系，不必遵循法律保留原则，属于不可诉的行政行为。受处分学生可以通过申诉途径谋求救济，如未获救济，可以依法提起行政复议及行政诉讼。
The legal relationship between the school and the students for education rights disputes involved, China can learn from Japan and China's Taiwan area practice, will be "special power relationship theory" for the development of the "relationship between the basic relation and management said". To the basic relationship status as a student, loss and degradation made such decisions, all belong to the acts of administrative litigation. Other such as clothing, work and rest time for students, dormitory management provisions belong to management relationship, do not have to follow the principle of legal reservation, administrative act is not actionable. The punished students can appeal to seek relief through ways, such as not relief, may file an administrative reconsideration and the administrative litigation law.
Two, practice and law need to further define the problem
（一）“就近”“免试入学”的标准
(a) "nearby" "admission" standard
义务教育阶段的就学纠纷，在现实中主要表现为适龄儿童就近入学、免试入学、监护人拒不送被监护人入学等方面的争议。
Compulsory education stage school disputes, in reality mainly for school-age children came near to the entrance, open admission, guardian refuse to send by guardian entrance and other aspects of the dispute.
根据《义务教育法》的精神，使儿童、少年就近入学，是地方各级人民政府的法定职责。但实际上，各县市政府编制的义务教育学校设置规划中，并没有中小学合理布局的具体标准，有时政府划分学区没有考虑居民实际居住状况，而过多的考虑行政区域的划分或学生户籍所在地等其他因素，出现了只隔一堵墙却不在一个学区不能就近入学的情况。还有一些偏远地区适龄儿童上学要翻山越岭，因太远太累孩子不愿上学还要责罚其父母的情况。要解决现实中存在的问题，除了制定学校设置和学区划分的具体标准外，还要转变观念，使政府在义务教育上履行职责。有一些地方就根据本地实际，制定了当地办学条件标准，如《河南省农村义务教育阶段学校办学条件基本标准（试行）》规定：“根据人口分布和人口出生率等综合因素，人口比较密集的平原地区，原则上每0.5万人左右设一所完全小学，每2-3万人设一所初中。”“本着就近入学的原则，平原地区小学服务半径一般不超过2公里（不含寄宿制学校）。”总之，只有制定就近入学的具体标准，人们才能判断政府设置学校是否合理，同时，也会减少由此产生的纠纷以及辍学现象的发生。
According to the "Compulsory Education Law" spirit, so that children, youth came near to the entrance, is the local people's governments at all levels of the statutory duties. But in fact, the counties City Hall preparation of the compulsory education school set in the planning, there is no specific standard of primary and middle school rational layout, sometimes the government divided districts without considering the actual living conditions of residents, but too much about the division of administrative regions or student residence and other factors, there are separated by only a wall but not in a school district is not nearby enrollment situation. And the children of school age in some remote area school to tramp over mountains and through ravines, too far too tired kids don't want to go to school to punish the parents situation. To solve the problems existing in reality, in addition to the specific standards of school settings and the school district division, but also to change the idea, make the government perform their duties in compulsory education. There are some places according to the local actual situation, formulate local school running conditions and standards, such as "Rural Compulsory Education School of Henan Province, school conditions of basic standard (Trial)" provides that: "according to the general distribution of population and birth rate, the population dense plain region, in principle every 5000 or so people build a complete primary school, every 2-3 million people a junior high school." "The spirit of the nearest school principle, the plain area service radius of primary school is generally not more than 2 kilometers (not including the boarding school)." In a word, only formulate the specific standards of nearby enrollment, people can judge the government set the school is reasonable, at the same time, will also reduce the resulting disputes and the occurrence of the dropout phenomenon.
In 2006 the new "Compulsory Education Law" Twelfth "the provisions of the first paragraph of school-age children, adolescents admission", but in reality, some schools, especially primary school, junior high school still focus on the admission test, some of which belong to the school of foreign languages, and other characteristics of the school, compulsory education stage school arrangement, related to a large number of children, juvenile vital interest, to reduce the contradictions and conflicts, in addition to formulate rules, also asked the government to firmly enforce the law. But the solution to the "admission" disputes fundamentally, it needs the government to clear the purpose of education, the reform of the education system, the implementation of quality education. At the same time, to balance the educational resources, narrow the differences between different regions, between different schools, the cancel key schools and non key schools, key classes and non key classes on the efforts.
（二）义务教育“免费”的范围
(two) the scope of compulsory education "free"
2006年修订的《义务教育法》规定：义务教育免收学费和杂费，对贫困学生提供免费教科书，对其寄宿生活费予以补助，这是我国义务教育的巨大进步，但《义务教育法》没有对“杂费”包括的对象进行界定，免费的范围不清晰，就难免出现“乱收费”的现象。我国应结合财政能力，规定我国义务教育阶段“免费”的范围，对贫困地区、弱势群体采取差别对待，增加较多的免费项目，如提供学习用品及购入费，走读需要的交通费，住宿费饮食费等。
The 2006 amendments to the "Compulsory Education Law" stipulates: compulsory education free of tuition and fees, provide free textbooks to poor students, give aid to boarding fee, this is a great progress in China's compulsory education, but the "Compulsory Education Law" to "no object including fees" are defined, free range is not clear, it will present the "charges" phenomenon. Our country should combine the financial capacity, the provisions of the stage of compulsory education in China "free" range of vulnerable groups, poverty area, take different treatment, increase free items, such as providing school supplies and purchase fee, day need transportation fees, accommodation catering fees etc..
（三）父母的教育选择权和父母的教育参与权
(three) parents' educational choice and parents' educational participation rights
父母选择权是受教育权中自由权的一部分，我国的《义务教育法》只规定了残疾儿童的父母可以选择入学接受教育或在家教育，或在普通学校（班）还是在特殊学校（班）接受教育。一般儿童的父母在义务教育阶段只有选择民办学校的自由，没有选择公立学校或在家教育的自由。《义务教育法》第12条“就近上学”原则又使选择自由在法律上受到一定限制，但现实中，父母交一定数量的择校费可选择公立学校。这种做法对贫困家庭是不公的。近年来出现一些在家教育的纠纷，因为没有相关法律规定被认定违法。作为协助儿童实现其基本权的父母，理应具有教育自由。为回应这种利益需求，我国应修改相关法律规定，借鉴其他国家的作法，给予父母教育选择权，如在家教育的学生接受成就测试，也应承认其在家教育的合法性。
Is a part of the right to freedom of the right to education of the right to choose our parents, "Compulsory Education Law" only provides for parents of disabled children can choose entrance education or education at home, or in ordinary schools (classes) or in special schools (classes) to receive education. General children parents only choose private schools in the compulsory education stage free, no choice of public school or in the home education freedom. "Compulsory Education Law" Twelfth article "to the nearest school" and the principle of freedom of choice is restricted by law, but in reality, parents pay a certain amount of school choice fees can choose public schools. This practice is unfair to poor families. In recent years some at home education disputes, because there is no relevant legal provisions deemed illegal. To help children realize their fundamental right as parents, should have the freedom of education. In response to this interest demand, our country should amend the relevant provisions of the law, learn from other countries in practice, give parents the education options, such as receive achievement test in the home education for students, should also recognize its legitimacy in the home education.
父母教育权是教育权的一种表现形式，一些国家法律还确认父母的教育参与权，加强父母对学校事务的参与，促进学生个性、能力的发展和提高。我国现有教育立法对父母教育参与权的规定较少。只有1996年《幼儿园工作规程》第49条、第50条规定较为完整。总体上看，父母的教育参与权在我国处于法律依据不足，未被教育基本法明文确认状态，无法正当有效行使。其原因是立法者只着重父母的义务没有考虑父母的权利，父母的教育参与权未取得应有的法律地位，有必要通过教育立法确认父母的教育参与权。
Parents' right of education is a form of education right, some state laws also confirmed parental education participation rights, strengthen the parents to participate in school affairs, and promote the development of students' personality, ability and improve. The provisions of existing legislation in our country is less education for parents education participation right. Only the "kindergarten work rules" in 1996 forty-ninth, the fiftieth stipulation of complete. Look on the whole, parents' educational participation rights in our country is in the lack of legal basis, is not the fundamental law of education expressly state, no legitimate and effective exercise. The reason is that legislators only focuses on the obligations of parents did not consider the rights of parents, parents' education participation rights without legal status should be through education, it is necessary to confirm the parental education participation right legislation.
（四）学生权利救济的途径
(four) the students right relief way
At present, our common education right disputes mainly concentrated in three cases: one is the school, entering a higher school of the controversial; two is to drop out of school and the expulsion of the controversial; three is the degree certificate issued and conferred the controversy. Education right protection basic relief means including the education system, education system, educational administrative litigation system of reconsideration. The following three kinds of ways of legal remedy deficiencies are as follows:
First, in the education system, at present there is no a unified normative legal documents stipulated special system of student complaints, "Education Law" and "Private Education Promotion Law" in principle established by the administrative appeal system of students, but the complaint handling procedures are not specified; some local government regulations such as "Chongqing City students appeal approach" provides more specific, but the specification level is relatively low, and in certain administrative area effectively. Therefore, it is necessary through national legislation or amend existing law clearly students accepted the appeal of organs and internal processing mechanism, the appeal of the scope of accepting cases, aging, types, processing of appeal decision execution and appeals, litigation and reconsideration of the relationship between specific procedures for unity, specific provisions.
第二，教育行政复议操作性较差。虽然《行政复议法》将复议范围从原有的“人身权、财产权”扩大到“受教育权”。但实际上教育行政复议有很大的局限性，因为行政机关与高校的权力分工不明确，行政复议的受案范围较为笼统，不便于操作。如高校招生录取行为、责令学生退学及开除行为能否以高校为被申请人而申请复议，没有明确，因此，行政复议法仍需要明确受教育权复议的对象和范围。
Second, educational administrative reconsideration to operate. Although the "Administrative Reconsideration Law" will review range from the original "personal rights, property rights" to "right to education". But in fact the education administrative reconsideration has great limitations, because of the administrative organs and the authority division of labor is not clear, the scope of accepting cases of administrative reconsideration is general, not easy to operate. As college enrollment, students drop out of school and fire behavior order behavior can take the University as the respondent and the application for reconsideration, not clear, therefore, the administrative reconsideration law still need to make clear the object and scope of the right to education review.
Third, administrative litigation case scope is not clear. According to the "Education Law" provisions of article forty-second of the educatees "appeal to the relevant departments to give punishment against the school, on school, teacher violated his rights, property rights and other lawful rights and interests, to appeal or bring a lawsuit." However, the provisions mentioned in "the legitimate rights and interests of" whether to include the right to education, there are different opinions of scholars. Although the scope of administrative lawsuit to the people's court has been extended to the field of education administration in Colleges and universities. But in the legislation has not yet clearly admissible range. Because of the educational rights disputes related to the university school running autonomy, through judicial interpretation, the court explicitly only accepted students' schooling, entering a higher school, out of school dismissal disputes, disputes and dispute related degree student status made matters and to limit or deprive of.
目前，我国教育申诉制度、复议制度和诉讼制度三种救济手段是否相衔接，立法还没有明确，教育申诉制度与教育复议制度二者在解决学生权益纠纷时没有明确分工，容易造成重复交叉，既浪费当事人精力和行政资源，又使人无所适从。由于学校的处理决定对受教育权有重大影响，应当允许学生不经申诉与复议直接提起诉讼。行政申诉不再作为行政复议的前置程序，复议也不作为诉讼的前置程序。除上述三种救济途径外，有学者提出建立教育调解制度和违宪审查制度作补充。对于受教育权纠纷中涉及的学术争议，有学者提出行政权力和司法权力不应介入，应建立学术复审机制。总之，上述救济制度在功能上的分工、配合与衔接问题，可以通过修改宪法和相关诉讼法来加以解决。
At present, our country educational appeal, reconsideration and litigation system is connected to three relief methods, legislation also not clear, the education system and education reconsideration system two no clear division of labor to settle disputes in the interests of students, easy to cause the repeated cross, not only a waste of energy and resources and the administrative party, make the person not know what course to take. Because of the decision of the school to have a significant impact on the right to education, should allow students without complaint and reconsideration to direct litigation. Administrative appeal is no longer as the prepositive procedure of administrative reconsideration, the reconsideration is not as pre litigation procedure. In addition to the above three kinds of remedies, some scholars proposed the establishment of education mediation system and judicial review system as the supplement. For the academic dispute relates to dispute the right to education, some scholars put forward the administrative power and the judicial power should not be involved in, should establish the academic review mechanism. In short, the relief system in the function division of labor, cooperation and convergence problem, can be solved by revising the Constitution and related procedure law.
（五）流动人口受教育权的平等保护
(five) the equal protection of the right to education of floating population
受教育权的平等包括教育机会平等和教育待遇平等两个方面，受教育权的平等禁止“歧视”。我国为解决流动人口的受教育问题，采取了各种措施，许多地方规定流动人口的子女可以在实际居住地就地入学，但实际执行状况并不乐观，民工父母为了给孩子注册必须办理复杂的行政手续、缴纳特殊学费，有的地方还采取歧视性的分校、分班教学。今后政府应将实现受教育权平等作为一项重要任务来抓。
The equality of right to education includes the equal education opportunity equality of treatment and education in two aspects, the equality of right to education prohibits "discrimination". China's education to solve the problem of floating population, has taken various measures, many local regulations of floating population children can enroll in situ in the actual place of residence, but the actual execution situation is not optimistic, migrant workers parents to give children registered must go through the complicated administrative procedures, to pay special tuition, some places have adopted discriminatory campus, placement teaching. In the future the government should be to realize the equal right to education as an important task.
(six) power limits of government and school
《教育法》第28条，《高等教育法》第32条到第38条对学校的自主权作出了规定，但权力行使的界限，即限制性条件不明确，如对于学生违法、违纪而实施的开除学籍处分，是否受法律保留的限制没有规定。《高等学校学生管理规定》规定由学校内部规定剥夺、限制学生受教育权，这是不符合法律保留原则的。由教育部的行政规定来确定剥夺学生主体资格的理由，立法层次也偏低。有学者建议：在《立法法》第8条法律保留范围中增加“宪法规定的基本权利和重要权利”，把受教育权纳入到法律保留的范围之内。政府规章和学校规定只能在法律规定的范围之内对受教育权事项进行具体化，自行创设新的条件种类来限制和剥夺学生受教育权均属无效。
"Education Law" article twenty-eighth, "higher education law" article thirty-second to thirty-eighth of the autonomy of the school made provisions, but the boundaries of the exercise of power, that is, the restriction condition is not clear, as for the students, and the implementation of the law and discipline expulsion punishment, whether by law to retain restrictions not specified. "Regulations" provisions of the management of college student from inside the school regulations, restrictions deprive students right to education, which is not in line with the principle of legal reservation. By the Ministry of education of the administrative regulations to determine deprive students of the subject qualification of reason, the legislative level is low. Some scholars have suggested that: in the "legislative law" eighth law reserved area increase "the constitution basic right and important rights," the right to education into the scope of legal reservation. Government rules and regulations of the school only in the scope of legal provisions on matters of right to education of specific conditions, to set up a new species to restrict and deprive of the right to education of students is invalid.
To sum up, through the unremitting efforts of 30 years, our country the right to education theory achieved fruitful research results, the education law and workers unremitting efforts and education for the improvement of legislation is not divided, but many problems are caused by lack of system supply, for example, free compulsory education in rural areas need to have a few the level of government share the funds as the guarantee of the system, but also depends on the public finance system of the state of perfect city; the stage of basic education school choice fees, the fundamental reason is caused by the contradiction between supply and demand of quality education; the contradiction between the aims of Education in our country and the system of exam oriented education; between quality education and teaching in large classes of contradictions and so on, to solve these problems the need for government based on the purpose of education, take corresponding measures; increase the input in education and educational resources, encourage and regulate the schools run by social forces, the best path selection and selection system supply and system construction.