Study On Legal Control On Autonomous Enrollment Of Institutions Of Higher Education

Newly emerging as autonomous enrollment, there are a series of problems. This paper raises the comprehensive management mode concerning legal principles, regulations, procedures and relief of the autonomous entrance examination. It consists of introduction and main body two parts. The introduction part includes problem introduction, current research situation, research significance, research methods and writing framework. And the main body is divided into the following five parts.The first chapter is the autonomous entrance examination and legal control mode. The autonomous entrance examination of colleges and universities has gone through the process of point experiment, group experiments, spreading experiments and gradual reforms on it. The current autonomous entrance examination has three types. The candidates all have to take the autonomous test hosting by the college or university itself, including registration, qualification check, preliminary test, second examination and so on. The subject of autonomous examination is colleges and universities rather than the government. It depends on the law, specifically, the good law. The colleges and universities determine autonomously the application conditions, examination methods and admission standards. Generally speaking, public colleges and universities are public corporations. They and the students are not in an equal status. In judicial practice, it has dealt with enrollment disputes through administrative litigation procedure. As for the standard form, the university hosting the autonomous examination has the clear legal authority. For the essential standard, it is for the purpose of public welfare. In all, the autonomous entrance examination is an administrative act. The autonomous examinations are widely questioned and worried by the social laws; it is dangerous to enlarge and dissimilate the general administrative power; university autonomy does not exclude the legal system but manages under it. Therefore, the autonomous entrance examination must be under the control of law. Studying the methods of controlling the enlargement of administrative power in the mainland law system and Anglo-American law system, as well as the legal principle constraint autonomy, the writer presents the comprehensive mode of legal control on the autonomous entrance examination in our country, i.e. the principle control, regulation control, procedure control and relief.The second chapter is about justice-the basic principle of the autonomous enrollment. The justice of the autonomous examination is the public focus as well as the hot spot in theoretical research. Justice is the basic principle running through the regulation making, procedure operating and relief afterwards. It requires the equal treatment in similar situation, different and proportional treatment in different situation and preferential treatment for disadvantaged groups. As regard to the system level, the autonomous entrance examination should reflect justice in opportunities. First, talents are of diversity, and so is the purpose of college education. "Different situation, different treatment" is to select capable students by different standard. Thus the autonomous enrollment policy is diverse. Second, "regional label" and "different treatment for different schools" are actually "similar situation, different treatment", violating the principle of justice. Third, "different treatment between town and country" seems to be justice in form, but is, in fact, injustice as "different situation, equal treatment". Drawing lessons from the preferential policy adopting by British government after Laura Spencer case to favor the social vulnerable groups, the social disadvantage groups should be given special treatment to realize the substantial justice according to "Different Treatment Principle" of John Rawls. Taking the oral English examination for example, the discretionary justice should be embodied in the process. The examiners should, first of all, have the academic evaluation standard in mind, being not too broad but detailed. To achieve the unified standard, the examiners need to be trained by audio material to set up the assessment scale of oral examination. Based on this, the expert scoring system should be adopted, including more than 4 examiners. To avoid that one person has the final say, the highest and lowest scores are removed to calculate the average score; practice the autonomous rating system to prevent collusion among the examiners; implementing recheck system, when the disparity between rechecking score and the original score is too large (over 5%), the chief examiner ought to convene the two groups to re-evaluate. Thus, the academic evaluation standard cannot be impassable and the discretion justice of the examiners is ensured.The third chapter is about legislative improvement on the autonomous enrollment. Administration according to law requires the limits of the autonomous examination’s legal powers, and the rule of good law demands the perfection of enrollment regulation. The autonomous enrollment is still in the period of promoting by policy and adjusting at low level standard, especially the adjustments by the documents of Ministration of Education and its general administrative office, secretary of students as well as the related rules of colleges and universities. There is much space to promote the legislation technique of the autonomous enrollment. And the current form, language, stability and unity of legislation on autonomous enrollment are in the low level. It is very necessary to establish screening system for the enrollment regulation by the education administration. The rights and liabilities of the participants remain to be determined. First, transform the government functions and focus on the legal system construction, to manage and serve the examination and admission. Second, put the autonomy of colleges and universities and self-regulatory mechanism into practice, based on the confidentiality, rechecking, publicity and supervision systems. Third, clarify the rights of students, including registration, fair competition, right of information, hearing, use of test materials, special privileges, relief and autonomous options. Fourth, set the legal obligation of every party, consisting of relief and punitive obligation.The fourth chapter is about the due process on autonomous enrollment. The due process of autonomous examination helps to limit the power of colleges and universities to protect the rights of students, reflecting at least neutrality, publicity and participatory. The neutrality principle requires colleges and universities maintain an unbiased attitude to treat all the students equally. With relatives taking the examination, the testing personnel (the developers and interviewers of the test) avoid participating. Before the finishing of the tests, the developers and interviewers should be sealed. And the interviewers, students, and examination rooms should be randomly divided at the very time. "Forbid exparte contacts. Designing tests, taking tests, typing in the scores and admission should practice function separation. The openness of the enrollment procedure requires the rules and process (results) need to be open to the public in some way. The publicity of the rules of autonomous enrollment is of great significance. The high school principal recommending system is widely criticized. The un-transparency of rule makes it a secret deal, the device of public turning into individual property. The procedure of autonomous examination is not open enough; the censorship is in the suspicion of black box operation; scoring during the interview is closely guarded as a secret; the information concerning the scores of students is not substantially open to the public. The way to make it public is varied. In the information age, the attention should be paid to internet and short message platform, without ignoring the traditional ways to deliver the general regulation for the enrollment. The participatory principle requires the public, especially the students to have the right to participate in the making of the rules and procedure in various ways. Only the rules made in democratic process can be the "good laws", and can be universally accepted and followed. The students’ rights of consultation, withdrawal, consulting grades, papers, and other audio materials as well as stating and defending should be protected accordingly. Supervisory power must be put into practice in some ways.The fifth chapter is about the legal relief of autonomous enrollment. The relief from the education system and judicial organizations belongs to the afterwards relief. Some problems remain in the appeal system within the college and university. This paper advocates appeal in advance based on 5 reasons. The appeal system needs to be perfected; the students appeal system of Chongqing is worth using for reference. The administrative recheck system has 4 advantages and characters for the relief of students, compared with the judicial check. Then, through analyzing the case of Mindi suing Suzhou University, looking the back the development of the theory of special power relationship, suggesting the administrative justiciability of the autonomous enrollment, concerning the theory, system and judicial practice in our country. At last, analyze the principle of the judicial check in the enrollment, including the judicial check of academic behavior, the illegal administrative conduct, the illegal rules of autonomous enrollment and the advanced appeal within colleges and universities. Suggest the State Council to establish the administrative laws and regulations of the autonomous enrollment as soon as possible, explicit that the rules of it should be stick to and perfected, serving as the supplement of National Uniformed Entrance Examination; set the justice as the basic principle of the autonomous enrollment system; the obligations and guarantee mechanism of all the participants involving in the autonomous enrollment should be perfected.