On The Appointment Or Employment Of The Elementary And Secondary School Teachers And The Settlement Of Related Disputes

In our country, teachers in elementary and secondary schools were appointed as public servants before, but now, they are becoming employees step by step. During the process of the transformation, there are a series of problems to be solved: the indeterminacy of the status of teachers duo to the blurred legal relationships between teachers and their appointers or employers, the illogicality between the appointing structure and specified rules of the teacher appointment (or employment) system because of the ambiguous status of teachers, and the difficulties in settling the disputes of employment or appointment as a result of above-mentioned blurred legal relationships between the teacher and the appointer/employer as well as the limitations of the appointing/employing system . To improve this situation, we should solve the problems of the teachers' status, the teachers' appointment system, and the remedy methods of settling the appointment disputes.According to the Teachers Law of our country, teachers are professionals employed by schools. But, it does not specify whether the nature of the relationship between teachers and their employers is labor contract or administrative contract relationship, and there are some remnants of administrative subordination relationship in current rules of teacher employment. All these lead to the indeterminacy of the teachers' status. In some foreign countries and regions, teachers in private schools are employees; teachers in public schools are divided into three kinds: public servants, public employees, and school employees. Teachers working in public schools may have a labor contract or administrative contract with education authorities. Teachers' occupation carries the nature of public service, professionalism, and public welfare. Different countries and regions place stress different aspects of the nature of that nature, accordingly teachers may have different status. The author's argument in this dissertation is that, in our country, the relationship between public schools and teachers should be defined as an administrative contract relationship, and that the relationship between nonpublic schools and teachers should be defined as a labor contract relationship.In our country, the system of teacher' technical posts was established under the background that teachers were appointed as cadres, then, after teachers weredefined as professionals by the law, the systems of teacher certification and employment were added. There are defects among these three systems: the assignment of a teacher's technical post is separated from the employment of him; the certification of a teacher is separated from the appraisal of his qualification to hold a technical post. However, the appraisal of the qualification for a teaching post is combined irrationally with the appointment of the post. As for the specific rules, the system of teachers' employment does not reflect the specialties of the teacher's profession adequately, the procedure of employment is not very precise, and the classification of teachers' certificates is not so perfect. In other countries or regions, the appointment or employment system of teachers in elementary and secondary schools is composed of two parts; the certification of teachers and the classification and revocation of teachers' certificates are formally legalized; the recruitment of teachers in public schools is regulated by the rigorous procedures; and the relatively stability of the teachers' career is institutionally guaranteed. On account of all these factors, the author's suggestion is that the appraisal of a teacher' qualification for a technical post should be separated from the assignment of the post, with the former incorporated with the certification of a teacher and the latter with the employment of a teacher. Hence, new systems of teacher certification and teacher employment are constructed. On the basis of this reformation, we should further grade the professional levels of teacher's certificates and perfect the regulations and rules concerning the refusal of i...