Legally speaking, corporal punishment is an educational way or means with serious pathological conditions. Infringed on students' rights such as health, body and personal freedom. This paper briefly demonstrates the subjects and types of civil responsibility and criminal responsibility of corporal punishment of students. In recent years, corporal punishment has become one of the focuses of education in China, which profoundly reflects the conflict and transformation of old and new ideas in the process of education reform in China, especially in China. Today, corporal punishment has been declared illegal in most countries. In modern and modern countries, many laws and decrees prohibit corporal punishment. After the founding of New China, schools were encouraged to consciously observe discipline, and persuasion and education were insisted, and corporal punishment of students was explicitly prohibited for many times. 1952 In April, the Ministry of Education issued an instruction on abolishing corporal punishment or corporal punishment in disguised form for students, prohibiting corporal punishment and corporal punishment in disguised form for students who suffered physically and mentally. 1986 China's compulsory education law stipulated in the form of law for the first time that corporal punishment of students was prohibited. 1993 teachers' law stipulated that teachers who often corporal punishment of students and failed to change after education should be given administrative sanctions or dismissed. If the circumstances are serious, whether starting from the basic human nature of primary and secondary school students and the law of their physical and mental development, or starting from the essence of education and educating people, they should be investigated for criminal responsibility according to law. Corporal punishment hinders people's healthy development and also affects the process of educational modernization aimed at educating people. Therefore, it is imperative to ban corporal punishment.
Today's world is a world of children, and children mean the future and hope of mankind, which has become the common sense of everyone. 1959 165438 The Declaration on the Rights of the Child, adopted by the United Nations General Assembly 10 on October 20th, not only emphasizes the children's right to education, but also the obligations of parents, society and the state, and not only emphasizes the needs of children's physical and mental development.19891. The United Nations General Assembly adopted the Convention on the Rights of the Child, which further emphasized and stipulated that "States parties should take all appropriate measures to ensure that the way of enforcing discipline in schools conforms to children's personal dignity". Nevertheless, a series of vicious incidents of corporal punishment of students still occur everywhere. According to the Legal Daily, Seimi Zhang, a fifth-grade student in a primary school in Shandong Province, made five mistakes in the final exam. During the winter vacation, the teacher stipulated that every time you make a mistake in the exam, you will be fined 100 times for a day off. Because of this, he will be fined 500 questions a day and 2 1 day holiday will be fined 105000. Seimi Zhang didn't finish his homework, and he was afraid. On the first day of school, he committed suicide by jumping off a cliff. Later, there were vicious incidents in which teacher Cai in Sichuan punished students to eat plastic film, teacher Cui in Shaanxi punished students to carve the word "cheap" on their faces with a needle and paint it with red ink, teacher Luo in Guizhou punished students to eat shit, and teacher Yunnan punished students to swallow 1000 live flies. If the above examples are only a few extreme examples, it is common for teachers to punish students directly (teachers slap students in the face and beat them with a pointer), let students punish students on their behalf (for example, let class cadres punish students who violate discipline), let students punish themselves (let students who violate discipline slap in the face), punish students for homework and punish students for doing sports (for example, punish students for standing, running and doing push-ups). Such shocking facts make people deeply confused and think. Therefore, it is particularly important and urgent to seriously study the legal problems in corporal punishment of students and seek legal ways to curb corporal punishment of students.
First, the illegality of corporal punishment of students
Corporal punishment of students refers to the behavior of teachers who violate students' health by violence, threat of violence or other coercive means. Corporal punishment is related to backward educational concepts. At present, in China's educational work, the vicious expansion of "film chasing" and the proliferation of money worship have swallowed up students' interests, hobbies and specialties. Teachers' extreme pursuit of grades and the pressure of various exams have led students to memorize some knowledge under great pressure and gradually become an examination machine. Even the closest, richest and most complicated parent-child relationship and teacher-student relationship in the world have been distorted into the simplest and rudest. Taking the special new teacher-student relationship of democracy and equality, respecting teachers and loving students, and learning from each other as a score, the slavery of the paper, what is "teaching without distinction" and what is "teaching students in accordance with their aptitude" can be ignored. Due to the backward cultural background and economic background, there are still factors of old system and old concept, so simple and rude educational behavior is induced among teachers, and corporal punishment is more serious in small and medium-sized cities than in big cities, and in rural areas than in cities.
Author: King of Football 2007-5-1411:47 Reply to this statement.
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2 On the legal issues of corporal punishment of students and a preliminary study
In fact, whether it is the Education Law of the People's Republic of China, the Compulsory Education Law of People's Republic of China (PRC), the Teachers Law of People's Republic of China (PRC) or the Law of People's Republic of China (PRC) on the Protection of Minors, the illegality of corporal punishment has been clearly stipulated. That is to say, corporal punishment of students, regardless of serious consequences, specifically, corporal punishment of students violates the rights of students in at least the following aspects:
1, students' personal freedom is violated.
Article 37 of China's Constitution stipulates: "The personal freedom rights of People's Republic of China (PRC) citizens are inviolable, and any citizen shall be executed by the public security organ without the approval of the people's procuratorate or the decision of the people's court, and shall not be arrested, illegally detained, illegally deprived or restricted, or illegally searched." Personal freedom is the most basic right enjoyed by every citizen according to the Constitution, and students also enjoy this right. In education and teaching, students who violate discipline are confined, or foreign students are asked to make up their homework, stand against the wall, and search for the purpose of confiscating toys. It not only infringes on students' right to health, but also infringes on their personal dignity, and even limits their freedom of life for a certain period of time. This kind of corporal punishment or disguised corporal punishment is a serious illegal act.
2. Students' personal dignity is violated.
Personal dignity is the most basic right that every citizen should enjoy. Article 38 of the Constitution clearly stipulates: "The personal dignity of China people and China citizens is inviolable, and it is forbidden to insult, slander, falsely accuse or frame citizens in any way." In order to achieve the so-called teaching purpose, some teachers have carried out some corporal punishment or corporal punishment in disguised form, such as pulling hair, slapping, standing and working. On the surface, for the purpose of education, teachers put their own personality above the students' personality, which is essentially an illegal act in the name of "educators". Although every corporal punishment touches the students' flesh and blood, this kind of injury is a permanent pain in the mind.
3. Students' right to health has been violated.
The right to health is the subject of life, and it is legally entitled to protect the health of one's own physiological function. Teenagers, especially primary and secondary school students, are in the golden age of physical development. The use of violent corporal punishment can easily cause damage to students' body organs, and in severe cases, it will cause lifelong disability. For example, Li, a third-grade student in a primary school in Shangzhou, Shaanxi Province, was beaten into a brain oscillation by an angry teacher after class, mixed with symptoms such as hearing loss.
4. Students' right to education is violated.
Education is the basic right of every citizen. Article 46 of the Constitution stipulates that "China citizens have the right and obligation to receive education". Articles 2 and 4 of the Compulsory Education Law of People's Republic of China (PRC) stipulate that "the state implements nine-year compulsory education, and the state, schools and families guarantee the right of school-age children and adolescents to receive compulsory education according to law." Schools should respect the right of underage students to receive education. However, in real life, there are still many behaviors that violate school rules, class rules or labor discipline, such as being expelled from the classroom by teachers, being punished, or substituting work for study, which deprive these students of the opportunity to attend classes in the classroom and make them unable to enjoy equal educational opportunities with other students. Its essence is to violate students' right to education.
In addition, as educators, both corporal punishment and corporal punishment in disguised form violate the corresponding educational laws and regulations and should bear corresponding responsibilities. Those who constitute a crime will be punished by law.
Author: King of Football 2007-5-1411:47 Reply to this statement.
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3 Reply: Legal issues and preliminary research on corporal punishment of students.
Second, the subject of legal responsibility for corporal punishment of students
1, the main body responsible for the student injury accident caused by corporal punishment
Especially today, with the continuous improvement of the legal system, more and more cases of personal injury compensation caused by corporal punishment and disguised corporal punishment are controversial. In recent years, there have also been some personal injury compensation litigation cases caused by corporal punishment of students in our school. There are also some opinions in the process of handling: First, corporal punishment is directly implemented, that is, the teacher is the responsible subject of infringement; Second, what teachers implement is the school's duty behavior, and the school where teachers work bears the main responsibility; Third, teachers' corporal punishment or corporal punishment in disguised form violates school rules and regulations. If schools fail to educate teachers, both schools and teachers should bear the responsibility. Fourth, the teacher is the perpetrator of the illegal act, and the school participates in the lawsuit as a third person to distinguish whether the corporal punishment of students is an individual act or the school is at fault, and both parties bear corresponding responsibilities.
Although the above statements have their own basis, in order to truly establish the subject of responsibility for civil damages caused by corporal punishment, we must first recognize the nature of the school. Article 3 1 of the Education Law of the People's Republic of China stipulates that schools and other educational institutions that meet the requirements of legal persons shall obtain the status of legal persons from the date of approval or registration: "Schools and other educational institutions shall enjoy civil rights and bear civil responsibilities in civil activities according to law". Therefore, schools are not only institutions specializing in education, but also places for students to receive cultural knowledge. It can also be an organization with legal personality or an organization without legal personality. According to the law, a civil subject with legal personality should not only enjoy civil rights independently in civil activities, but also bear corresponding civil responsibilities. Under special circumstances, if the school affiliated to a factory or institution does not have the qualification of a legal person, its civil liability can be borne by its legal person.
In addition, to understand the relationship between schools and students, the relationship between teachers or schools and educatees is different from that between parents and children. Article 49 of the Education Law of the People's Republic of China stipulates: "Parents or other guardians of minors shall provide necessary conditions for their minor children or other wards to receive education, and parents or other guardians of minors shall cooperate with schools to educate their wards. Therefore, the relationship between guardians and schools is a statutory educational management relationship and cannot be equated with or replaced by guardianship. " The duty of the school is not to act as an agent for the ward to carry out civil legal acts, to protect the person, property and other legitimate rights and interests of the ward, and to educate and care for the ward's behavior of restraining the ward. The school has no energy to undertake all the duties of guardians.
Article 28 of the Education Law of the People's Republic of China stipulates nine rights of schools and other educational institutions, the second of which is "organizing and implementing educational and teaching activities", the fourth is "rewarding or punishing educatees", and Article 29 stipulates six obligations of schools and other educational institutions, among which Article 3 stipulates "safeguarding the legitimate rights and interests of educators, teachers and other laborers". It can be seen from these regulations that schools are legal in the country. Therefore, if a school infringes on the legitimate rights and interests of students in the process of teaching management, it should bear corresponding legal responsibilities. When teachers engage in daily activities according to the requirements of the school, the legal person behavior of the school engaged in teaching activities is decomposed into the duty behavior of teachers directly implementing teaching activities. In essence, teachers' corporal punishment of students in order to maintain the order of teaching management is an excessive act of teachers managing students on behalf of the school. Therefore, the school should bear civil liability for teachers' job behavior.
2. The subject of criminal responsibility caused by corporal punishment.
The subject of a crime refers to a person who commits an act that endangers society and should bear criminal responsibility according to law. From the natural attribute of the subject, the criminal subject includes natural person subject and unit subject.
Author: King of Football 2007-5-1411:50 reply to this speech.
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4 Reply: Legal issues and preliminary research on corporal punishment of students.
Second, the subject of legal responsibility for corporal punishment of students
1, the main body responsible for the student injury accident caused by corporal punishment
Especially today, with the continuous improvement of the legal system, more and more cases of personal injury compensation caused by corporal punishment and disguised corporal punishment are controversial. In recent years, there have also been some personal injury compensation litigation cases caused by corporal punishment of students in our school. There are also some opinions in the process of handling: First, corporal punishment is directly implemented, that is, the teacher is the responsible subject of infringement; Second, what teachers implement is the school's duty behavior, and the school where teachers work bears the main responsibility; Third, teachers' corporal punishment or corporal punishment in disguised form violates school rules and regulations. If schools fail to educate teachers, both schools and teachers should bear the responsibility. Fourth, the teacher is the perpetrator of the illegal act, and the school participates in the lawsuit as a third person to distinguish whether the corporal punishment of students is an individual act or the school is at fault, and both parties bear corresponding responsibilities.
Although the above statements have their own basis, in order to truly establish the subject of responsibility for civil damages caused by corporal punishment, we must first recognize the nature of the school. Article 3 1 of the Education Law of the People's Republic of China stipulates that schools and other educational institutions that meet the requirements of legal persons shall obtain the status of legal persons from the date of approval or registration: "Schools and other educational institutions shall enjoy civil rights and bear civil responsibilities in civil activities according to law". Therefore, schools are not only institutions specializing in education, but also places for students to receive cultural knowledge. It can also be an organization with legal personality or an organization without legal personality. According to the law, a civil subject with legal personality should not only enjoy civil rights independently in civil activities, but also bear corresponding civil responsibilities. Under special circumstances, if the school affiliated to a factory or institution does not have the qualification of a legal person, its civil liability can be borne by its legal person.
In addition, to understand the relationship between schools and students, the relationship between teachers or schools and educatees is different from that between parents and children. Article 49 of the Education Law of the People's Republic of China stipulates: "Parents or other guardians of minors shall provide necessary conditions for their minor children or other wards to receive education, and parents or other guardians of minors shall cooperate with schools to educate their wards. Therefore, the relationship between guardians and schools is a statutory educational management relationship and cannot be equated with or replaced by guardianship. " The duty of the school is not to act as an agent for the ward to carry out civil legal acts, to protect the person, property and other legitimate rights and interests of the ward, and to educate and care for the ward's behavior of restraining the ward. The school has no energy to undertake all the duties of guardians.
Article 28 of the Education Law of the People's Republic of China stipulates nine rights of schools and other educational institutions, the second of which is "organizing and implementing educational and teaching activities", the fourth is "rewarding or punishing educatees", and Article 29 stipulates six obligations of schools and other educational institutions, among which Article 3 stipulates "safeguarding the legitimate rights and interests of educators, teachers and other laborers". It can be seen from these regulations that schools are legal in the country. Therefore, if a school infringes on the legitimate rights and interests of students in the process of teaching management, it should bear corresponding legal responsibilities. When teachers engage in daily activities according to the requirements of the school, the legal person behavior of the school engaged in teaching activities is decomposed into the duty behavior of teachers directly implementing teaching activities. In essence, teachers' corporal punishment of students in order to maintain the order of teaching management is an excessive act of teachers managing students on behalf of the school. Therefore, the school should bear civil liability for teachers' job behavior.
2. The subject of criminal responsibility caused by corporal punishment.
The subject of a crime refers to a person who has committed an act that endangers society and should bear criminal responsibility according to law. From the natural attribute of the subject, the criminal subject includes natural person subject and unit subject. The subject of crime in China's criminal law is a natural person, and the crimes that may be caused by corporal punishment mainly include intentional injury, such as serious injury or disability of students, death and insult caused by negligence. Article 30 of China's criminal law also clarifies this view. Only according to the specific provisions of criminal law can a unit become the subject of crime, and the subject of responsibility for criminal crimes caused by corporal punishment can only be a natural person. In other words, the main body responsible for the crime caused by corporal punishment of students can only be the teacher himself, not the main body of the unit, that is, it cannot be the school.
Third, the types of responsibilities of teachers and schools in corporal punishment of students.
1, civil liability
(1) General corporal punishment is a common fault and should be classified as legal person infringement, and the school should bear the responsibility. With regard to the legal person's capacity for tort, Article 106 of the General Principles of Civil Law stipulates that a legal person not only violates the contract or fails to perform other obligations, but also commits tort. This article essentially confirms that legal persons should bear civil liability if they want to have the same tort capacity as citizens. As a social organization, all activities of the school can only be realized through the behavior of natural persons. Therefore, the school's behavior, whether it is civil legal behavior or other acts such as infringement, is reflected by the behavior of specific natural persons. Teachers are the staff of the school, imparting knowledge and managing students on behalf of the school. In order to achieve the so-called teaching purpose, teachers use some unconventional teaching methods to punish students or corporal punishment in disguise, which is an improper way of student management. Therefore, teachers' corporal punishment of students belongs to the school's behavior, and its fault form belongs to the general fault, that is, the school is at fault, the teacher is not at fault, and its civil liability should be borne by the school.
Author: King of Football 2007-5-1411:50 reply to this speech.
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5 Reply: Legal problems and preliminary discussion on corporal punishment of students
(2) General corporal punishment belongs to the same fault and should be borne by the school and the offender respectively. The school is jointly and severally liable. Article 130 of the General Principles of the Civil Law stipulates: "If two or more people commit tort and cause damage to others, they shall be jointly and severally liable. If the content of * * * is intentional and negligent, it includes the following forms, that is, * * * can be intentional or negligent. Several actors or their actions or results have the same understanding or should pay reasonable attention to the occurrence of a certain result without paying attention, so they have the same fault. For the same fault of corporal punishment of students in schools, it generally means that schools do not have a perfect and feasible system ban to restrain teachers' teaching behavior, stop teachers from corporal punishment of students or are in a laissez-faire or semi-laissez-faire state, and some teachers are in a laissez-faire state for personal purposes. Deliberately punishing students, at this time, schools and teachers should bear corresponding responsibilities according to their own mistakes. Of course, this kind of behavior is caused by the irregular behavior of school teachers in education and teaching activities, and schools should bear joint responsibility.
(3) General corporal punishment is a mixed fault, which should be borne by the school, the offender and the victim respectively according to the size of the fault. The mixed fault in corporal punishment refers to the situation that the school does not have a perfect system to explicitly prohibit teachers from corporal punishment of students or is in a laissez-faire state, and teachers deliberately punish students for personal purposes, and corporal punishment of middle school students is also wrong. Mixed fault system not only embodies the requirements of fairness and justice, but also embodies the spirit of self-responsibility. This practice is of more significance to educate and urge the parties to behave reasonably, especially to urge the victims to take reasonable measures to pay attention to personal property and personal safety, and to prevent and reduce the occurrence of damage.
2. Corporal punishment or disguised corporal punishment constitutes intentional or negligent injury and the division of school responsibilities.
First of all, according to the principle of self-blame in criminal law, whoever commits a crime will bear criminal responsibility, and the punishment is only for the criminal himself, not for the innocent. Therefore, serious corporal punishment such as beating and insulting constitutes intentional injury or negligent injury. The subject of crime can only be the person who commits the crime, that is, the actor. For schools, in order to facilitate management, improve the enrollment rate, and stop violations of discipline, teachers can also be allowed to indulge in corporal punishment, but it is impossible to indulge in crime. Therefore, if corporal punishment constitutes a crime, its fault must come from the subjective aspect of the actor. Therefore, the actor bears criminal responsibility and the school bears civil responsibility.
3. The administrative responsibility of the perpetrator of corporal punishment.
Corporal punishment of students is against the law. If it constitutes a crime, it shall be investigated for criminal responsibility, and if it causes damage, it shall bear civil liability. The unit where the actor belongs should also give the actor certain administrative punishment, and the management of the employees of this unit should be paid attention to. School teachers or other staff members punish students by corporal punishment or corporal punishment in disguised form in the course of performing their duties, or violate work requirements, operating rules, professional ethics or other relevant provisions. It has brought certain losses to the school, and the school can also impose administrative penalties on the perpetrators according to relevant laws while assuming legal responsibilities. In addition to clearly stipulating that "teachers are professionals who perform educational and teaching duties, undertake the task of teaching and educating people, train builders and successors of the socialist cause, and improve the national quality", the Teachers Law of People's Republic of China (PRC) stipulates in Article 37 that teachers may be dismissed from their posts in their schools, other educational institutions or other educational institutions under any of the following circumstances.
In short, corporal punishment of students is an infringement, and teachers are also employees of the school. Their behavior itself is a kind of duty behavior. Those who cause injuries to students shall bear corresponding civil liabilities. If corporal punishment touches the law and causes a crime, the party concerned shall be investigated for criminal responsibility, and the school shall also bear corresponding civil liability. Teachers themselves have not standardized their personal education behavior in accordance with various rules and regulations, which violates the corresponding education and teaching regulations, and should also be subject to corresponding administrative penalties and bear certain administrative responsibilities.
References:
1, China People's Education Law, edited by Guo Qifu, published by Beijing Broadcasting Institute Press,1April, 995.
2, "Primary and Secondary School Management Standard" edited by Chen Yu 'an, published by Zhengzhou Elephant Publishing House, June 2003.
3. Criminal Law, edited by Peking University, published by Peking University Publishing House, 2003.
4. Tort in Civil Law, edited by Wang Liming, published by Renmin University of China Press, 1993.
5. The Practical Handbook of Student Injury Treatment was edited by Wang Shubin and published by Changchun Jilin People's Publishing House in 2003.