On The Study Of Disputes Between Public Higher Educational Institutions And Students In China

The disputes between public higher educational institutions and students is a kind of manifestation of incoordination.People in the campus hope to live regular and vigorous life, as people wish the society is harmonious. But there are also disputes in the campus, as the condition of disputes is normal in the society. The dispute between public higher educational institutions and students is one of education disputes in the campus.The special features of disputes between public higher educational institutions and students lie in specific parties in action, profession, complexity, society and diversity of disputes solving means. The dispute in the eyes of sociologist is not only a kind of destory to the established social order,but also a kind of strength to change established irreasonable regulations; but the legal scholars argue that disputes between public higher educational institutions and students impact the established order in the campus, they also pay more attention to how to solve disputes from the view of procedure and entity.In the face of complex disputes between public higher educational institutions and students, the dissertation discusses the following questions:how to solve the dispute; how to cultivate democracy atmosphere through solving dispute; how to construct nice atmosphere in the campus for the ego development of students. In the face of the changing disputes between public higher educational institutions and students, it is not necessary for us to be worried that increasing disputes between public higher educational institutions and students can destory the institution of university, to wish unpractically that the means of prevention and solution can obstruct absolutely the occurrence of dispute between public higher educational institutions and students, to give up the means of prevention and solution because the disputes between public higher educational institutions and students still take place even if we try our best to prevent and solve the dispute between public higher educational institutions and students. The dispute between public higher educational institutions and students would exist over a long period of time in the campus, as the other disputes would exist in the society.The disputes between public higher educational institutions and students should be classified if we want to cope with the disputes appropriately. In the background of the separation between Civil litigation and administrative litigation in China, it is necessary for us to classify the dispute between public higher educational institutions and students from the point of legal relationship in order to choose the suitable means of solving the dispute. Analysing and summarizing the complex legal relationship between public higher educational institutions and students, the dissertation devides them into relationship of constitution, administration law and civil law. Constitution protects the basic human rights, the disputes of rights to education and rights of freedom of speech belong to the dispute of constitution relationship. Most of disputes between public higher educational institutions and students discussed on media are related with the relationship of administration law, because this kind of disputes is connected with vital interests of students. The article lists some disputes such as study opportunities exclusion from school, the issuing of academic certificates and diploma. The civil disputes between public higher educational institutions and students include disputes of contract and tort, but most of civil disputes are personal injured accidents disputes. The article lists some personal injured accident disputes. Firstly, the low quality education facilities leads to personal injured accidents; secondly, the personal injured accidents take place because of the negligence of public higher educational institutions; thirdly, the job behavior of teaching staff results in personal injured accidents of students. Activity is a kind of important method of cultivating students, it is not a good way that students’activity is limited even abandoned because of the personal injured accidents of students taken place probably. From the point of management, the article devides the disputes between public higher educational institutions and students into teaching management, disciplinary actions management and logistic management. There are disputes about course achievement of students, about achievement of CET and published paper connected with diploma in the area of teaching management. The disputes always occur in the field of dining room, dormitory, security service and hospital.Many kinds of factors lead to occurance of disputes between public higher educational institutions and students, the article pays main attention to the three aspects:social background, the public higher educational institutions and individual factor of students. The market economy begin to rise with the reform in China, education cause go back to the third department and education cause is independent on politics and economy, this is the macrography social background of dispute between public higher educational institutions and students. The defect of interior regulations of public higher educational institutions, congenital factors of individual and acquisitive consciousness of right of students, and other factors bring about occurance of dispute between public higher educational institutions and students.The dispute between public higher educational institutions and students is inevitable, how to solve dispute is more important. There are many means of solving the dispute between public higher educational institutions and students, but they all work around the litigation. Proceeding of litigation is very rigorous, and it is a manifestation of society ruled by law and it can try its best to protect the right of parties in action. Solving the disputes of breach of contract and tort is the function of civil litigation, it is the same as the dispute between public higher educational institutions and students. Most of civil disputes are personal injured accidents disputes between public higher educational institutions and students, public higher educational institutions need to take the legal responsibility for the injuries of the students at school due to the schools’wrong doing while carrying out their educational and pedagogic activities.Can the judical power intervene in the disputes between public higher educational institutions and students? As the special public legal person, the legal relationship between public higher educational institutions and its students is a special power relationship, a public higher educational institution also constitutes special administrative legal relationship, the judical power intervene the disputes between public higher educational institutions and students in some areas. In order to protect the autonomy of public higher educational institutions, the judical power should be restricted in some areas. The theory of important event from Germany can solve the balance between the autonomy of public higher educational institutions and protection of right of students, if the management action of public higher educational institutions influence the interests of students extremely, it is necessary for judical power to intervene in the disputes between public higher educational institutions and students.The litigation is the last approach solving the disputes, it is the centre of coping with the disputes between public higher educational institutions and students, but it is not the best means for solving the disputes. Alternative Dispute Resolution (ADR) is more suitable for solving the disputes between public higher educational institutions and students, because these disputes are more complex than other disputes. The article focus on the four approaches of solving the disputes:reconciliation, in-school appeal system, administrative reconsideration, education arbitration. As an approach of unofficial relief, reconciliation is used very widely and effectively while solving the disputes between public higher educational institutions and students. If reconciliation agreement is endowed with legal force, it can work better for settling the disputes between public higher educational institutions and students. As a kind of main approach solving the disputes between public higher educational institutions and students, in-school appeal system can solve the disputes in the campus, and it can do the least harm to the parties of disputes. But defects exist in the in-school appeal system itsilf and the following aspects should be improved:the orientation of nature,the scope of appeal, the connection with the other approaches soluting the disputes. The nature of education administrative reconsideration is a quasi-judicial administration, it can supervise the legality and rationality of education administrative management power, it is a nice approach solving the disputes between public higher educational institutions and students outside the campus. It is feasible to perfect the education administrative reconsideration, firstly, we can change the extant education administrative appeal into education administrative reconsideration; secondly, education administrative reconsideration should be taken as prior procedures of administrative lawsuit. The disputes between public higher educational institutions and students are characterized by their obvious profession and technique, therefore, it is necessary to establish a very professional and neutral education arbitration. The education arbitration exercise arbitration power independently, and it does not attch itself to any government organ. In terms of the disputes between public higher educational institutions and students, the education arbitration can solve the disputes of contract, tort, discipline and academic disputes. More researches should be done into connection between education arbitration, education in-school appeal, education administrative reconsideration and education litigation.