Safeguarding The Right To Receive Education

Right to receive education is one of citizens' fundamental rights in modern society, which has been fixed in the constitution. Administrative litigation is the best way to realize judicial remedy when student's right to education is infringed upon by school's administrative behaviors, then, such administrative acts can be sued at the law?School is not seen as proper defendant in the traditional theory and practices. But, school is the subject of administration upon delegation according to administrative laws and regulations including law of the People's Republic of China on Education, performing a series of administrative power of education in the name of government; In addition, even if the theory of "special power relation" stemming from German still affected the legislation on administrative litigation so that the court doesn't accept the case involving internal administrative act, it has been criticized and lots of countries have specified that they can be under judicial review as long as such act violate fundamental rights of citizens by absorbing what is useful and healthy and discarding what is not; Thirdly, people often are concerned with the situation that judicial power maybe interferes with and undermine educational law of school running independently. In fact, we misunderstand judicial review. On the contrary, the limited intervention turns out to make school run better. To balance the relationship among judicial review, running a school dependently and the protection of right to receive education, the key is the limited judicial review, which includes: 1) the limited scope of accepting cases which means only acts seriously encroaching right to education may be brought to court; 2) the limited essentials of review which means that administrative reconsideration is the preceding procedure ahead of administrative litigation; 3) the limited standard ofreview which means that due procedure becomes the main standard. Notification, heeding opinions of the opposite people and giving reason belong to the lowest standard while hearing system is essential. Laws on educational administration cannot be applied to lots of cases for their demurrage and gaps so that applying legal principles is the best way to settle this problem. "Tianyong v. Beijing Scientific and Technologic University", named as the first case of educational administration, displayed the charming and feasibility of such principles as proportionality and confidence protection.