A Constitutional View Of Legal Relationship In China's National Student Loan System

In China's education aid system, construction of national student loan system always is a difficulty, which there is no law yet. Therefore, on one hand, student loan policy which depended on the administration means only encounters a legitimacy crisis; on the other hand, the benefit body who participate in student loan system, strives for maximum profit through policy defect that go against effective advancement of student loan policy. Facing this kind of difficult position, domestic theory research is forging ahead rapidly, which involves economics, management, education, and belongs to " risk control" research model as a whole.But previous studies either relies excessively on positive analysis method, which towards instrumental rationality, and neglects value dimension of student loan policy, or belongs to legal analysis, in which the fact is tailored by law, that cannot powerfully support and efficiently reply to right guarantee of poor college students.At present, legislating timely has become the basic consensus between academic circles and professional circles, and right-duty relation(legal relationship)is core content of law, so the thesis choses legal relationship as research object, and establishes a "rights protection" research based on jurisprudential analysis. In fact, education aid policy embodies a constitutionalism problem of redistribution of national income, how to treat with poor college students's right of obtaining financial aid can be transformed into a constitutionalism problem that to guarantee citizen's social rights. Thus the thesis establishes central argument:Though legal relationship of national student loan system is restricted by objective material conditions, it is more important to take constitutionalism as the precondition, take right of obtaining financial aid as zero point, and promote system construction transformation from " risk control" to "rights protection"Under the heading of research field,research model and central argument, the thesis takes relationship between socialist constitutional principles and education aid policy as the main lines. Firstly, the thesis makes an empirical analysis classified by legal relationship: Viewing from policy text, administrative legislation of student loan is notably characterized by "administration law". Civil rights depends on government administration, legal person and other social organizations are under the control of administrative power, and there is clear deviation between government power and responsibility. Viewing from policy practice, student loan management is notably characterized by "confrontation-type",including confrontation between administration and law, confrontation between administrative counterpart and administrative subject, confrontation between administrative subjects.Secondly, in order to understand holistic development, the thesis makes an empirical analysis of domestic study on factors influencing construction of national student loan system. Investigating macro-background of national student loan system from three respects:fiscal system reform, financial system reform, and higher education administration system reform. Summarizing development trend of intergovernmental relations, bank-government relationship, and government-school relationship, student-university relationship:higher education investment must be perfected under contents of public finance; student loan business must be beared by policy bank; government-school relationship of student loan system is internal administrative law relationship that need to be preserved; student-university relationship of student loan system is external administrative law relationship. Viewing the development trend of construction of the socialist legal system with Chinese characteristics, It is universally acknowledged that,"social law" is the most important legal department which facing the field of livelihood.Then, the thesis discusses the social rights attribute of right of obtaining financial aid, and the nature of social law of student loan law by jurisprudential analysis. Poor college student is a typical vulnerable groups, including economic poverty, psychological poverty, and right poverty most importantly. Though the right to education is a basic human right in China, it's not the significance of enjoying, but the significance of protecting. The nation (or government) must provides sufficient protecting conditions through its best effort to ensure that the citizen can exercise the right to education effectively, in order to promote the development of personality and society. Comparing with administrative law, civil and commercial law, and economic law, the student loan law has its particularity, such as objective, means, and principle, and it is should belong to the legal department of social law.Followed that, this paper re-examines the construction of national student loan system in America. In fact, American's student financial aid system with legal significance, which started from the Cold War period, is in the consideration of national security, not not totally a right to education protecting. The student financial aid policy has already deviated widely from an intended course, which out of necessity of low-income household. In the past twenty years, the student loan default rate rises and falls sharply.And there are two main influence factors:one is the changing of economic circumstances,another is impact of student loan default rate of for-profit higher institutions. But for-profit higher institutions in America is set in lifelong education system, it is essentially different to China's college which is coverd by national student loan system at present. With the development of student loan marketization in America, its faults were exposed gradually. Therefore, Obama's government recalls the student loan-granting power. On the whole, American constitutionalism, including party politics, election system, interest group, etc. is the most important influence factor in causing student loan policy to protect middle class increasingly, lack of continuity and stability of policies, and further influences the student loan default rate.Finally, on the basis of empirical analysis, jurisprudential analysis, comparative analysis in previous paper, the last chapter re-examines the construction of national student loan system in China from the viewpoint of constitutionalism. Making clear the independent constitutional right position of right to education in our country. The right to education is interrelated with socialist political foundation, and is the fundamental premise of participating in administration."Constitutionalism" comes from western modern thought, and it's also the only road to a modernized country in China.The connotation of constitutionalism in China determines that protection of right to education is a constitutionalism problem which is essential requirement of socialist essence, determines type of state obligation and path of legal construction. At last, the thesis mainly expounds the constitutional arrangement from two aspects:first is the national prestation mode of student loan under service administration, second is the remedy approach of poor college students's right of obtaining financial aid.