On The Autonomy Of Chinese Universities And Colleges

Under the guidance of the general target of overall rule of law put forward on the 18th National Congress of the CPC,China conducted a package of coordinated amendments to The Educational Law of the PRC,Higher Education Law of the PRC and the PRC Law for Promoting Private School,which were issued and implemented after approval in 2015 and 2016 respectively,furthering the legalization construction of higher education.Ever since the emerging of modern Chinese universities,in the course of China's higher education and its policy development,both China's higher education system and university management pattern have been characterized by historical tradition and greatly influenced by the reform of national political system and different stages of economic society.With those factors,the government has always been the leading one in higher education management.Universities and colleges lack the tradition of independent management and the spirit of pursuing academic freedom,which is inconsistent with the essence of pursuing profound knowledge and promoting the inheritance and innovation of science and culture as an academic institution.In order to stimulate the vitality of university education,strengthen their function of serving the country and social development,the Central Committee of the CPC brought forward the Decision on Education System Reform in 1985 to increase school autonomy,and started to promote legislation in the area of higher education.The issuance and implementation of Education Act and Higher Education Act in 1995 and 1998 respectively marked that China's higher education management had entered an era of "legalization".These two acts stipulate that universities and colleges have independent rights of running school.However,for over a decade,there is still too much government direct interference on higher education,and conflicts between legislation and administration,decentralization and regulation arose.Besides,problems such as ambiguous legal relationship,unclear nature,incomprehensive rights content exist in higher education autonomy at legal level;as well as dilemmas including uncertain legal status,vague judicial review boundary,unclear government authority boundary,incomplete internal governance structure on the implementation side.With that,the author pays its attention to legal rights related to legal rights of autonomy in higher education,hoping to promote its theoretical perfection and implementation support with a systematic research.Following the researching idea of identifying problems,analyzing problems and solving problems,and from the perspective of legal research while interactively applying theories in multiple subjects including law,politics,management,pedagogy etc.,this paper conducts a systematic research on the legal issues of the nature,powers and functions,allocation,implementation and guarantee of autonomy in higher education.It points out that the main perspective of' legislation should be changed;the powers and functions of higher education autonomy should be reconstructed;and universities and colleges'autonomy in deciding,executing and monitoring internal governance affairs should be ensured;so as to construct a scientific internal and external operating mechanisms and complete guarantee and constraint system.This paper contains five chapters excluding introduction and conclusion.The introduction part mainly introduces basic information including the background,significance,idea and methods of the research.The first chapter is mainly about basic theory domains of autonomy in universities and colleges,which a unique term of expression in China.It refers to the right of colleges and universities to conduct internal management and external relations independently as the main body in various educational activities according to law,free from any external illegal interference.As a kind of practical legal right,it embodies the basic characteristics of relativity,instrumentality,collectivity and interactivity,at the meanwhile it has certain practical value in the governance of the country,the development of higher education,universities themselves and academic subjects.As the development of higher education in China,higher education and the university internal management system have gone through some changes.University autonomy space has fluctuated but still remains government-leading.At present,from the aspects of constitution,laws,regulations and even national policies,there are relevant provisions on the autonomy of higher education,which are the legal basis of higher education autonomy as well as the basis of this paper.Chapter two reviews the problems existing in higher education autonomy from the reality,as well as external comparison and inspiration.By sorting the problems out one by one,it's found that the 'rights' of colleges and universities entitled by law are not implemented smoothly in reality.It also poits out the contradictory relationship between legislation and administration,decentralization and supervision,judicial review and relief.In terms of theoretical application,the theory of government control is still dominate,while the legal person system theory and the negative freedom theory have some limitations.The transformation of national social governance from omnipotent government to limited government pushes us to rethink and redefine the positioning of university organizations.The formation of the concept of public administration further shows the social attribute and autonomy attribute of universities,and the right of autonomy attribute of universities should be systematically guaranteed by legislations.Western countries have a long history of university autonomy culture and system.However,due to the different national conditions between China and western countries,universities and colleges should learn from the western countries while considering China's national conditions,rather than rigidly copy everything.Chapter three is about the theoretical development and perfection of the fundamental issues of autonomy in higher education.Serving as the theoretical basis for the autonomy of higher education,the Marxist theory of freedom and the theory of the third department provide the necessity,feasibility and legitimacy for the autonomy of higher education.The time is ripe for higher education autonomy to demonstrate its social and autonomous attributes,but the diversity of its legal identity determines the complexity of its legal nature.Taking the power theory in civil law as the analysis path and combining the external operation space of colleges and universities as well as the organizational characteristics of internal management,this paper reconstructs the power and rights,rebuilds the power boundary of higher education autonomy from both external and internal dimensions.Externally,universities have rights of participation and guarantee,such as the right to know,to express,to be fair,to resist and to cooperate.Internally,universities should have autonomy in decision-making,implementation and supervision of their own management affairs.The theoretical developmen of the autonomy of higher education requires change in the legislative philosophy.That means in terms of legislative design,the boundaries of public power should be delimited to ensure the rights of autonomy in higher education.Accordingly,the legal extension space of the related subjects shall be clarified.Chapter four focuses on the allocation and operation of higher education autonomy.Through the sample investigation of the three selected colleges and universities,we can basically know that Chinese colleges and universities are basically complete in the constitution and the construction of campus system.Their internal governance is also gradually on track,and they basically has the capability and foundation to operate autonomy abiding by the law.However,there are also challenges in the future actual operation.The autonomous scope of private colleges and universities is larger than that of public ones,but their actual capability of operating autonomy lack far behind that of public ones,especially the practical role of decision-making,supervision system and academic organization.In terms of theoretical research and practice,autonomy in higher education can be practically outreached by increasing the right to justice,the right to resist and the right to cooperate;expanding autonomy in property management remuneration,degree granting and setting disciplines and specialties;strengthening legality examination and improving the separated regulation,operation and assessment system as well as making better use of the council platform.Under the guidance of the principle of legality and rationality,the autonomy in higher education should adhere to laws,regulations and constitutions,which allocate their external and internal power and rights that should be implemented respectively by different institutions.There are many internal and external subjects involved in the implementing mechanism of autonomy in higher education,and the issues accumulated in the past are complex.This paper holds the view that we should follow the principles of rule of law,democracy and science,grasp the key breakthrough of difficult problems.Outside universities,strengthen the leadership of the governing party,give priority to the role of the ruling party in coordinating and supervising the NPC and government departments;clarify the functions of the NPC and give full play to its legislative and supervisory functions;the government shall perform the administrative functions of education management and service;social forces participate in accordance with the law and play a positive role in improving the function of social subjects.In colleges and universities,strengthen the communist party's leadership and implement the principal's responsibility;ensure the priority of academic power in the autonomous system and construct the separation and integration mechanism of academic power and administrative power;give play to the important role of democratic management and oversight bodies and improve the system in which the subject of internal governance is diversified;improve the decision-making and supervision mechanism of private colleges and universitiesChapter five studies the construction of guarantee system and restraint mechanism of autonomy in higher education,which shares the same identity.The legislature should assume the main function of system construction and give due concern and prompt response to the autonomy of higher education in terms of legislation,including the constitution construction of high education;strengthen the examination of the legality of the regulations and normative documents of institutions of higher education administered by the government;improve supervisory organs' role in anti-corruption prevention education and supervision and investigation.The judicial organ shall,from the pe-spective of solving practical problems and on the principle of guaranteeing rights,actively intervene in the violation of the right of autonomy by the government,social organizations and other subjects in accordance with the law,and reasonably examine the implementation of autonomy in higher education.For government departments,the administration according to law reflects the identity of guaranteeing and supervising the autonomy of colleges and universities.As for other social subjects,especially the organizers of private colleges and universities,they should exercise their pov er according to the scope ana procedure stipulated in the colleges or universities' constitutions made under relevant education laws and regulations.Social intermediary organizations that undertake the functions of evaluation and supervision of colleges and universities entrusted by the government should adhere to the principles of objectivity,neutrality and fairness and constantly strengthen the construction of organizational capacity.Within colleges and universities,it is important to improve the discipline supervision of the communist party and administrative organs,establish decision-making rules based or the constitution and academic standard system reflecting democracy,due process and accountability,and ensure the independent and proper operation of academic power.In the conclusion part,the author reviews and summarizes the essential research results of the previous chapters,and puts forward suggestions on legal system construction in three levels,as the foothold of legal research.First,speed up legislation and formulate a unified Administrative Procedure Law to establish a series of systems such as identification,disclosure,explanation of reasons,consultation,hearing,withdrawal,procedural resistance and disclosure of administrative decisions,etc.Second,revise and improve existing laws and regulations.It includes amending Education Law,Higher Education Law and Degree Regulations,perfecting Implementation Regulations of Private Education promotion law and other supporting systems.Third,improve and promote the implementation of the constitution of higher education.The constitution mainly regulates the internal management system,clarifies the rights and obligations between the sponsor and the university,and strengthens the construction of the private university academic committee.At the same time,it is pointed out that the management system in colleges and universities is a necessary complement and refinement to the constitution,which should focus on the elaboration of decision-making rules,the strengthening of academic standards and the establishment of rules for democratic management and supervision institutions.In addition to the text of the constitution and the supporting management system,the improvement and implementation of the constitution also involves the procedures for the formulation and amendment of the constitution,the implementation and supervision of the constitution.It should reflect the principle of "agreement and consensus" of stakeholders;It is suggested to establish an independent Academic Arbitration Commission through the organization of the academic commission;The NPC is responsible for the approval and supervision of the university constitution.