On The Tortious Compensation Of Public School In The Stage Of Compulsory Education

Rights for health and education are the basic human rights in the modem society. Along with the emergence of social problems in the development,the tortious incidents happen regularly in the schools and it is often hard for victims hardly to get compensation in time.The situation has become a major factor of preventing the education and society from further development.The existing education laws and regulations hardly can handle the complex situation in the tortious compensation in the new social environment.Once the rights of students being trespassed,the parents and school usually plunge into a long time lawsuit,which bothers the common order of school's education often.According to the 160^tharticle of The Opinions on the Civil Law,schools and kindergartens bear the responsibility for tortious incidents.According to the 11^tharticle of The Compulsory Education Law of the P.R.China,the parents bear the legislative obligation to ensure the right of education of their child in the compulsory education stage.While,the law failed to regulate clearly what kind of obligation the school shall take,especially in the situation that the tortious incidents happens in the school.Who shall take the liability in the incident of tortious compensation of school? How to define the limits of compensation? What is the standard? Where does the money come from? All of these questions and problems have not been regulated clearly by law.Those problems are the focuses of this study.According to the literature research,some people believe that the school shall bear the responsibility of compensation under the regulations from governments.While, those research did not exactly answer the questions mentioned above.This study adopted both literature research and case study in the compensation lawsuit of the public school and the analysis of cases could remedy the scarce of literature and legislative regulations.The comparison between America and Japan also provided a effective approach to solve the problems.The study put much emphasis on the problems of compensator and money.The two problems are the keys in dealing with lawsuit of tortious compensation.This study firstly analsized the character of compulsory education,then confirmed the responsibility of government in the compulsory education.Finally,based on the confirmation of the relation between students and country,students and school,school and country,the study was trying to construct a tortious compensation system of public school.The conclusions of the study are as following: The conductor of school is the one who bear the obligation of tortious compensation.According to the juridical practices,the verdict of court applies to the 160^tharticle of The Opinions of Superior Court on Civil Law.The article regulated that,if the school has the fault in the tortious incidents,the school shall bear the obligation of compensation whenever the incompetent person's rights are trespassed.According to this article,the school shall take the compensation obligation? Then,is the school the compensator? Is the school capable for the compensation? The 31th article of The Education Law of P.R.China says:If the school or other educational institution is accordant to the regulation of legal person,the school or other education institution obtains the qualification of legal person as soon as they register.Apparently,school is the legal person and shall bear the compensation obligation.The 61th article of The Education Law of P.R.China says:the educational outlay from government finance and the donation from social institution or individuals shall be used in the educational affairs and is forbidden to be appropriated and skimmed.The 49^tharticle of The Compulsory Education of P.R.China says:the outlay of compulsory education shall be used in the compulsory education in accordance with budget strictly;any institution and individual shall not appropriate or skim the money.The public schools have little ways of gathering money,except for the educating outlay from govemment finance.Once a toutious incident happens,the public school has no choice but to make use of educating outlay in order to get out of the trouble of lawsuit.While according to the 71th article of The Education Law of P.R.China,anyone who violates the relative regulations and appropriates or skims the educating money will be punished according to the law.The dilemma is that whatever the school choose,compensate or not,is violation to the law. So the school shall not bear the compensation and the one who has to compensate is its conductor.The 2^ndarticle of The Compulsory Education Law of P.R.China says:it is the government's obligation to conduct 9-year compulsory education system. Compulsory education is a kind of education for all the children of the right age and enforced by the government,is a kind of public education ensured by the government. From the above,we can see that the special character of compulsory education is the root for the government to bear the responsibility of compensation.The money for compensation shall come from government finance.According to the situation in China,the sum of compensation shall be beard by the central government,the provincial government and the county government respectively. The advice is the central government place the compensation sum into the financial budget,so does the provincial and county government.Both of the school and the conductor of school shall be the defendant in a lawsuit and the conductor of school shall bear the responsibility of compensation.Law construction,especially the establishment of The Law of Tortious Compensation in School of P.R.China,is the major way to deal with the lawsuit in the future.