The Settlement Of Disputes Over Disciplinary Actions Between Students And Tertiary Institutions

Disputes over disciplinary actions between students and tertiary institutions have been a hot topic in the field of educational law in recent years. To study further and thoroughly the disputes over disciplinary actions, and to perfect the mechanism are theoretically and practically significant to extricating us from the predicament of disciplinary action disputes, to constructing disciplinary action system in Chinese institutions of higher learning, to forming a new order in higher education, and establishing harmonious society. This dissertation, on the basis of relevant researches, focuses on the discussion and solution of five issues.1. Causes, situations, and focuses of disciplinary action disputes. The causes are mainly from students' refusal to accept disciplinary actions. Surveys show that the proportion of disciplinary action disputes in universities is relatively low but not as serious as reported by the media. The disputes are mainly centered round the three issues of action standards, action procedures and remedy approaches.2. Present solutions and problems of disciplinary action disputes. The approaches mainly include in-school appeal, administrative appeal, administrative reconsideration, administrative litigation and civil litigation. Although there are successful cases, problems and obstacles do exist to different extents.3. Legal relationships and positioning of disciplinary action dispute. Educational administrative power in institutions of higher learning, in nature, is the administrative power of social economy which is subjected to the national influence, so there must be both administrative and civil legal relationships between universities and students. As a result, from the origin of universities' administrative right, the nature of disciplinary actions and relevant legal relationships can be defined and corresponding approaches can be adopted.4. Further perfection of the inner mechanism of solving disciplinary action disputes. Firstly, perfect the disciplinary action system in colleges and universities. To begin with, clarify the theoretical premise for disciplinary action system exists in universities: the unity between order and freedom; next, perfect the standard of disciplinary action system. The standard of scope is three-dimensional field; the standard of contents is the guarantee of fundamental rights and the minimum performance of duty; the standard of degree is the principle of proportions and the standard of basis is that the rule should comply with the law. Moreover, perfect the procedure. The disciplinary procedure of North Carolina University can be used as reference to design disciplinary action system with impartial procedures. Secondly, define in-school appeal right in terms of disciplinary actions. The appeal right is a basic human right of students, and it is also a right of constitutional procedure. Thirdly, set up appeal organ for disciplinary actions. The appeal committee should be defined as in-school administrative arbitrary institution and established independently from the organizational structure of the university. Fourthly, formulate appeal system as to the disciplinary action. The university should, based on the principle of being legal, open, simple, uniform and effective, and on behalf of the school itself, draft, examine and decide, record and issue, revise and abolish the appeal system. Fifthly, guarantee the effective operation of the appeal system. To start with, operating principles include the principle of being legitimate, fair, open, timely and convenient for the students, the principle of independently performing arbitrary right based on "rule", the principle of one-time arbitration, the principle of examining the legality and appropriateness of detailed administrative action, the principle of non-mediation, and the principle of evasion. Additionally, the linking-up with exterior procedures. By revising Educational Law and the Law of Higher Education, the legal position of student's appeal system can be improved and the linking-up in-school appeal system and exterior legal remedy approaches can be clarified.5. Further perfect the exterior mechanism of settling disciplinary action disputes. Firstly, perfect the educational administrative appeal system that is relevant to disciplinary action disputes. To begin with, educational administrative appeal system, in law, should be defined as educational administrative arbitration. Next, confirm the approach of educational administrative appeal in disciplinary action disputes, there must be adequate legal basis to show that educational administrative departments have responsibility to settle the dispute, and it shouldn't be considered inferior to the appeal reception right. Furthermore, educational administrative departments should supervise educational administration through examining the disciplinary action regulations of universities and colleges. What's more, relevant regulations should be formulated to guarantee the fair operation of educational administrative appeal. For example, Ministry of Education can formulate Implementing Measures of Educational Administrative Appeal from Students in institutions of higher learning to guarantee that the local educational administrative departments perform the responsibility of dealing with disciplinary action disputes based on law. Secondly, perfect educational administrative reconsideration system. On one hand, confirm that administrative reconsideration system is a way to settle disciplinary action disputes. For example, administrative punishments like dismissal and refusal to issue diploma or degree diploma should be brought into the channel of administrative reconsideration. On the other hand, improve administrative consideration system to settle disciplinary action disputes. Administrative Consideration Law should include the right of suspension or advance withdrawal for specific administrative actions against laws; the operating authority or procedure in abstract administrative action stipulated in Administrative Reconsideration Law should be completed, the defining standard of inappropriate detailed administrative action should be clarified; the operability of administrative reconsideration's supervising of inappropriate action should be enhanced. Thirdly, perfect litigation mechanism. To start with, perfect administrative litigation mechanism relevant to handling disciplinary action disputes: define the qualification of administrative defendant in universities and colleges by deep-rooted judicial interpretation; the court strengthens the examination towards the regulations on disciplinary actions in universities or colleges. Next, perfect the civil litigation mechanism relevant to handling disciplinary action disputes. The students can bring civil litigation when the disciplinary action, in procedure or action, violates their property right, right of reputation, right of personal freedom, right of privacy and so on.