Research On The Reform Of Personnel System In Chinese Universities From The Perspective Of Rule Of Law

It is the embodiment and application of the strategy of governing the country according to law in the field of education by law to promote managing education and managing universities according to the law as well as achieve the modernization of education and administration in the new normal.It is the breakthrough point of deepening the comprehensive reform of higher education that promoting the reform of personnel system in universities with the law.To achieve managing education and managing universities by law,we must deal with the various legal relations in the reform process.The legal relationship between universities and teachers is the most basic relationship among many legal relations involved in the reform of personnel system in universities.This is of great significance to building world-first-class universities and first-class disciplines.In the modern sense,the Chinese universities personnel system originated from the new school in the late Qing Dynasty,and laid in the period of the Republic of China.After the founding of new China,the government carried out a series of reforms to the personnel system of universities.The new school of the late Qing Dynasty followed the feudal tradition,and its personnel system has centralized,bureaucratic,semi-colonial characteristics.The faculty of the new school is a court official and has legal status as a national public official.The legal relationship between the new school and the teachers has obvious relationship between the monarch and the minister.During the period of the Republic of China,the government carried out duty standardization,democratization,bureaucratization,and academic reform.The appointment system implemented for teachers,their legal status is an employee,and they enjoy certain rights and obligations according to the contract.The legal relationship between universities and teachers is equal contractual relationship.After the founding of new China,in the planned economy,teachers were included in the unified national cadre management system,and universities as a subsidiary of the government constitute an administrative legal relationship between teachers.Teachers living in the status of the relative counterparts,their rights and interests protected by government,and they accept the guidance and supervision of the Government.After the reform and opening up,under the conditions of market economy,the university as a legal entity began to reform the appointment system of teachers,and universities and teachers form employment contract relationship.This paper studies the legal relationship between universities and teachers in the reform of personnel system in Chinese universities in different historical periods.It discusses the legal status of universities and their teachers,the nature and characteristics of the legal relationship between universities and teachers.It researches the legal nature of the employment contract and the rights relief system of teachers.The paper proposes to formulate "School Law" from the aspect of national legislation.In the school law to establish a school legal person,and a clear legal rights and obligations of schools,and give the school legal personality in the civil,administrative aspects of the main qualifications.As legal persons in schools,universities are in the position of administrative counterpart in the educational administrative legal relationship constituted by the government and universities.In the course of carrying out education and teaching activities in accordance with the law,universities,as the administrative subjects,are agents and specific agents of the right to education of the State,which are in the position of public legal persons.When having civil relations with equal rights subjects,universities are in the position of civil subject with civil capacity and civil rights.Teachers are professional and technical worker who fulfill the duties of education and teaching among the legal persons in the school,and he enjoys the basic rights and obligations conferred on citizens by the Constitution and laws,and education laws also give him rights and obligations in education and teaching.Universities teachers are professional and technical personnel who enjoy the fundamental rights and obligations conferred by the Constitution and laws as well as the rights and obligations of higher education in schools among legal persons.Under the condition of appointment system,the legal relationship between universities and teachers is in essence to hire contractual relationship,and has the characteristics of "subjective stage".Before the signing of the employment contract,universities as a civil subject reached an agreement based on equal consultation with teachers,and there are civil legal relations between universities and teachers.After the employment contract signed,during the process of universities managing teachers,universities as the laws and regulations authorized by the executive body to perform public administration authority,and there are administrative legal relationships between universities and teachers.Under certain circumstances,universities entrusted by the educational administrative department,as the entrusted subject instead of the educational administrative department to perform its functions and powers,and there are the entrusted administrative legal relationships between universities and teachers.The employment contract is a special labor contract,and it has "homogeneity" with the labor contract in terms of legislative idea,contract subject,adjustment content,contract element and so on.At the same time,the employment contract has its own "particularity" in terms of co-product service,official corporate character,both public and private law attributes.The paper compares and analyzes the legal relationship between universities and teachers in the personnel system of foreign public universities.By learning from foreign experience and practices and combining with China's national conditions,the paper puts forward the route choice of reconstructing the legal relationship between university and teachers by using the rule of law.This route choice includes four aspects: perfecting the legal system of universities;clarifiing the rights and obligations of the teachers;standardizing contract management of university teachers;improveing teachers' rights relief system.The paper designs the legalization of personnel system reform in Chinese universities,and looks forward to its future development trend.The paper uses "School Law" to regulate the rights boundary between government and universities and clarify the relationship between power and responsibility;and locate the legal status of universities and teachers,clear the rights and obligations of both parties;and clarify the nature of public power in universities and improve the contract legislation and the right relief mechanism.Eventually forming a state of lawfulness with a clear relationship,clear powers and responsibilities and a smooth relief...