On how to protect the legitimate rights and interests of teachers and students by legal means

As an educational institution, schools are different from law enforcement bodies such as state administrative organs, and their management of students has its particularity. The legalization of student management in colleges and universities is mainly to adjust the relationship between schools and students according to national laws, deal with various contradictions between schools and students according to the principle of rule of law, and standardize and legalize the formulation and implementation of management rules and regulations. The legalization of college student management is a seemingly new but very realistic topic. Let's start with two cases involving the management of college students tried by the Haidian District People's Court in Beijing in recent years. One case is 1999, in which Tian, an undergraduate of University of Science and Technology Beijing, sued his alma mater for refusing to issue diplomas and degree certificates. The cause of the case was that when the student Tian took the make-up exam, he carried a note related to the exam with him and was found in the exam, but Tian did not read the note. According to the regulations of the school, Tian was found to be cheating and was treated as dropping out of school. Afterwards, due to school management mistakes, there was no withdrawal procedure. On the contrary, Tian took part in all subsequent courses and exams and achieved good results. His graduation thesis was rated as excellent. However, when the graduation assignment approached, the school found a problem and refused to issue a diploma and a degree certificate to Tian. So Tian filed a lawsuit. The case was first tried by Beijing Haidian District People's Court and second tried by Beijing No.1 Intermediate People's Court. The conclusion by administrative litigation is mainly due to the excessive punishment of the school, exceeding the authority, no legal basis, illegal procedures and the plaintiff winning the case. Due to the particularity and typicality of this case, the Supreme People's Court forwarded it as a case (People's Republic of China (PRC) the Supreme People's Court BulletinNo. 1999, page 4). Another is that not long after, Liu, a doctoral student at Peking University, filed a lawsuit in Haidian Court, suing Peking University for refusing to issue diplomas and degree certificates. This case caused great repercussions. The cause of action of this case is different from Tian's case, which involves the deep-seated problems of degree thesis evaluation and degree awarding. Because this case is controversial and complicated, and because there are many news media reports, I won't introduce it in detail here. China has a written law system, and precedents are not legally binding, but the legal significance of precedents deserves attention. These two cases initiated judicial intervention in school education management and students' judicial relief, which had a far-reaching impact on school management. Although there are still some defects in the judgment of Tian case and Peking University doctoral case from the perspective of judicature and jurisprudence, it puts forward a realistic topic for us: the management of college students should be carried out according to law. The legalization of student management is not only a theoretical issue, but also a practical issue. The court's judicial relief for students does not interfere with the school's autonomy, but corrects the wrong ideas of the school in student management, and its significance goes beyond a school or individual event itself. It forces us to think deeply in order to change the traditional mode of thinking and habits. Under the planned economy system in the past, colleges and universities enrolled students and allocated them according to the national plan, and all students attended school free of charge. Obey the national distribution after graduation. The school takes the completion of national tasks as the center, and emphasizes the unity of will and obedience in student management. This is understandable when students go to school completely free of charge, and students often accept it. In recent years, the deepening of the reform of colleges and universities, especially the students' self-financing and self-starting, has had a serious impact on the traditional management concept and mode of colleges and universities. However, limited by traditional thinking and habits, we seldom seriously consider the new relationship between schools and students from the legal point of view, and pay insufficient attention to and follow the principle and spirit of rule of law in student management. Therefore, it is subjective and arbitrary, especially under the guidance of strict management, when formulating or implementing some rules and regulations, it emphasizes the power of the school unilaterally and pays insufficient attention to the rights of students. Instead of calmly thinking about rules and regulations, the rationality and even legitimacy of some practices, simple reasoning and strict management will help students become talents. It is believed that students should give priority to obedience when receiving education, and pay less attention to students' opinions on some issues that concern their own interests. For example, when Tian's alma mater formulated strict examination discipline, it was targeted and its wishes were good, but it went beyond the boundaries of law. This case highlights the shortcomings of the school's concept of rule of law in student management. Second, to discuss the legalization of college student management, we must comprehensively and accurately analyze and understand the legal relationship between colleges and students. In the Tian case, the Haidian District Court of Beijing discussed the nature of the administrative legal relationship between schools and students from the perspective of why the administrative lawsuit was closed: "Under the current situation in China, some institutions and social organizations are endowed with certain administrative powers by law, although they do not have the qualifications of administrative organs. These units, groups and management counterparts are not equal civil relations, but a special administrative relationship. " This statement meets the needs of closing administrative litigation, but it is not a comprehensive exposition of the legal relationship between schools and students, and its conclusion that there is no equal civil relationship is debatable. At present, the relationship between colleges and students contains two legal meanings. First, it has the nature of administrative legal relationship. As the Haidian court said, colleges and universities represent the country or accept the entrustment of the state to manage the affairs related to student education in accordance with the laws and regulations of the country. China's "Education Law" on the management of college students' status, as well as the "Regulations on Degree Management" on the granting of degrees in colleges and universities, all reflect this nature. Although the school does not have the qualification of an administrative organ, it is endowed with certain administrative powers by law. This legal relationship emphasizes management and obedience, which is a vertical relationship, and the subjective status of both parties is not equal. Secondly, a kind of civil legal relationship which belongs to or has the nature of service contract has also been formed between schools and students. The basic performance is that students go to school at their own expense, choose their own jobs, charge fees and provide services. Although due to the nature of public schools in China and the limitation of people's income level, school fees can't fully meet the expenses of cultivating students now and even in the future, and the "consideration" of the "contract" between the two sides is not completely equal, the basic nature of the civil legal relationship formed by the two sides exists. This kind of legal relationship, the legal subject status of both parties is equal in jurisprudence, which belongs to the nature of private law and mainly belongs to the adjustment category of civil law. Ignoring this relationship and simply assuming that the relationship between students and schools is administrative is inaccurate. Of course, in the special school environment, the actual status of both parties in civil relations is not equal. The service contract between the school and the students obviously belongs to the nature of "format contract", and the students are in a state of passively accepting the school regulations. From the perspective of administrative legal relationship, administration must be carried out according to law. The administrative legal relationship is mandatory, and the administrative parties have the power of enforcement. This compulsion will often have a great impact on the interests of the administrative counterpart. Because of this, in administrative management or administrative law enforcement, only the power given by law and its exercise are legal, and the power cannot exceed the scope of authorization. If it goes beyond the scope, it will bear the consequences of invalid behavior and necessary legal responsibilities. Moreover, the exercise of administrative power needs to be carried out in strict accordance with legal procedures. Strict legal procedure is an important means to ensure the correct exercise and restriction of power. In terms of civil legal relations, both parties to the contract must perform their respective obligations equally. For a formal contractual relationship, we must abide by the law. For example, China's "Contract Law" stipulates that the party providing the standard contract shall not be exempted from its basic obligations and shall not use the standard contract to damage the rights of the other party. In case of any dispute between the two parties on certain terms, they shall make an explanation that is unfavorable to the standard contract provider. Third, under the new situation, how to legalize student management? The rule of law involves the requirements for schools and students. Because the actual status of schools and students is not equal, it should mainly regulate the behavior of schools. According to the actual situation of colleges and universities in China, we should pay attention to the following aspects. We should clarify some misunderstandings. For various reasons, some school administrators have misunderstandings about the rule of law. In the trial of two cases, the Haidian District Court in Beijing praised and criticized. In addition to passion, critics largely lie in misunderstanding of concepts. Some people oppose the rule of law and strict management, and think that following the so-called rule of law principle means relaxing management and letting students do some bad behaviors. It is believed that the negative influence of Haidian court's judgment on Tian case is greater than its positive significance. This kind of understanding is contrary to the modern concept of rule of law, and it is actually the thinking of rule of man. Strict management that deviates from the legal track will have a negative social impact. There are indeed some unhealthy tendencies among college students, so we should carefully analyze the reasons and change them through ideological education and other means. Simply emphasizing strictness and strictness cannot fundamentally solve the problem. Others simply use ideological and political education and moral norms to oppose the rule of law, which is also wrong. Although ideological and political education itself contains the education of rule of law, which can actively promote the enhancement of students' concept of rule of law, strengthening the management of rule of law cannot replace the role and significance of ideological and political work. As for moral norms and legal norms, their fields of action are not exactly the same, and their ways of functioning are also different. They are neither antagonistic nor substitutable. Strengthen the concept of the rule of law and adhere to the principle of the rule of law. Modern rule of law is closely related to the development of democratic politics. The rule of law can be analyzed from different angles. From the perspective of governance and management, the rule of law is not only a guiding principle, method and mode, but also a state. It is the confirmation and guarantee of power and rights, the norm and constraint of power and rights, and the balance and norm of power and responsibility, rights and obligations. Modern rule of law includes a series of basic principles, such as statutory power, openness and transparency, unity of legal system, and emphasis on procedure, and the rule of law must abide by these principles. In this regard, we have a lot to improve. For example, some schools' punishment (points) system for students is not open enough, and some even operate behind closed doors. Lack of detailed regulations, human factors are too heavy. Some schools' departments (colleges) set their own punishments (decentralization) without the formal authorization of the school, and the "legal system" of the same school lacks unity; When punishing (punishing) students, strict procedures are not fulfilled, and students' right to dissent is not fully guaranteed. All these explain the problems existing in the legalization of student management in colleges and universities, and show that it is of great practical significance to strengthen the concept of rule of law and adhere to the principle of rule of law. Strictly and accurately implement national laws and manage them according to law. In recent years, the national laws on education management are gradually improving, and the administrative functions of colleges and universities must meet the requirements of administrative rule of law and act in accordance with the principle of statutory authority. If there are provisions in the law, they must be observed; If there is no provision, it must also conform to the basic spirit of the law. It is not allowed to go beyond the scope of the law, restrict the rights of students, or punish students regardless of their subjective wishes. In particular, we should prevent the abuse and misuse of power. In some schools, departments (colleges) set penalties (points) for students by themselves, which is essentially an ultra vires act. There are also some schools that impose many fines (points) on students, some of which are as high as several hundred yuan. According to the relevant provisions of China's administrative punishment law, this practice of the school is very worthy of criticism. Pay attention to the quality of legislation. School "legislation"-the formulation of management rules and regulations, especially those closely related to students' interests, should be carefully studied and students' opinions should be listened to. Some problems can be treated as similar hearings, which makes the system scientific and reasonable and effectively enhances the enforceability. In particular, the management measures for students can only be implemented within the framework of relevant laws and regulations to prevent some management regulations from violating the law. All kinds of school rules should be publicized so that students can understand and master them. Punishment (differentiation) of students must be carried out in strict accordance with the procedures. Strict procedure itself is the inherent requirement of democracy and the rule of law. Strict procedure is also an important condition to improve the authority of law enforcement and ensure the correct implementation of "substantive law". When punishing (dividing) students, it is suggested to implement the public consultation defense procedure when it involves dropping out of school, expulsion and other matters. Students must be given the right to object and the time limit for objection, and allowed to make reconsideration. The reconsideration institution should be relatively independent from the original punishment organ. With the concept of equality, we should provide students with good services as much as possible. This equality is not only based on the requirements of the general rules of modern civilization, but also the embodiment of the above-mentioned "service contract relationship" characteristics. Schools should have a sense of equality, consciously fulfill their obligations, meet the legitimate requirements of students, and constantly improve their services. The phenomenon that students can only passively accept management and pay insufficient attention to teaching quality and logistics services should be fundamentally changed, which is not only the need to fulfill the obligations entrusted by the state to the school, but also the need to fulfill the students' "service contract". With the increase of self-funded tuition fees, these problems will become more and more prominent. It is reported that in a university in the south, almost all the students gave up the teacher arranged by the school and transferred to other classes to listen to another teacher. In fact, it is the students who "fired the teacher". This can not be simply considered as a disciplinary issue, but a requirement contained in the "contractual relationship". The idea that students should enjoy quality service when studying at their own expense deserves our deep consideration. The legalization of college student management involves all aspects and needs a process. With the continuous implementation of the strategic policy of governing the country according to law, colleges and universities, as the first good area reflecting modern civilization, will surely embark on the track of legalization in all their management work, setting an example for the whole society to build socialist democracy and the rule of law.