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Keywords legal relation of right to receive education right relief
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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:
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The main point of view, the right to education theory
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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.
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(a) the definition of the right to education
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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
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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.
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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?
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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".
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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
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(a) "nearby" "admission" standard
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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.
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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.
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(two) the scope of compulsory education "free"
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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..
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(three) parents' educational choice and parents' educational participation rights
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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.
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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.
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(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.
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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.
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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.
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(five) the equal protection of the right to education of floating population
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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
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"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.