On The Judicial Relief Of Students' Rights During The Administrative Management In Universities

With the opening and reform of development, with the higher education system in universities expanded and reform in colleges and universities, the scale of the management of students growing between schools and their students, all kinds of disputes. How to correctly analyzes the university management behavior, clarify the relationship between the behavior subject, seeking the right way realization rights appeals, realize the invasion rights timely and effective remedy etc., these problems are the education class the administrative lawsuit inevitable problems. This paper from the following several aspects discussed.Chapter one:The college student management behavior justiciabilityual concept definition. This chapter of "starts college", "student", "management behavior" several concepts defined respectively, the college student management in higher education legal actions under the background, broadening the scope of object of right remedy for the start of the college student management behavior are discussed. Begin from universities in different legal perspective, analyzes the university legal status, we introduce three relevant university legal status theory:the civil main body, administrative subject, double subject. Civil subject too radical, administrative subject too conservative, the author thinks that our country college should be double main body, namely, the college is both civil main body is administrative subject. Double subject identity can make the university in the civil lawsuit, also may get relief in the administrative lawsuit redress. Secondly, this chapter discusses the college student management in China, and points out that the supervision form internal supervision cannot exert effective action, and the influence of external supervision mechanism is limited. Because of the college student management behavior of the supervision mechanism is not perfect and limitations, it must establish the legitimate rights and interests of the university education students remedy mechanism.Chapter two:The college student management behavior not litigant theory basis and the practical difficulties. This chapter is divided into two parts, the first part of main research our academic circles explain the college student management behavior not litigant legal basis and realistic foundation, the second part of education management experiences in China, analyzes the college student management reality the drawbacks. Not v behavior The first part by introducing "special right relation, and points out that this theory in the same influence of theory:emphasizing the school manage independently, neglecting to student's right remedy. The second part of this chapter for school interior appeal system is not perfected, education administrative organ dual identity of college restriction, the ultimate remedy internal processing results laws are blank, student right to appeal finally realize and legal relief system can not effectively cohesion between the college student management, this paper discusses the drawbacks. Not v behavior This chapter demonstrates the current students through the drawbacks of relief system and the causes of this basis, the authors think that school students management behavior should have justiciability.Chapter three:Legitimacy and practical significance of justiciability about College students management::this chapter analyse the words in 28th clause of the Education Act. By comparing the rights with power, it find the right of students management in colleges and universities can be either the administrative power of educational administration, or civil right of civil subject. Existing provisions is difficult to distinguish legal nature of the right of College students management, but it can provide a Theory fulcrum to the analysis of the justiciability of College students management. No matter it is right or power, should not exclude the, judicial remedies are necessary and intervention of judicature should not be rejected. On the basis of the correct understanding of the self management in college and university, we can explain the necessity of intervention of judicature in College students management area as the requirement of restricting the powers of the Colleges and universities to set up rules and also a limit of the power in colleges and universities of students management. Legitimacy of the right of autonomous management in colleges and universities is not equal to the legitimacy of its specific administrative acts. So its specific operation should be monitored by due process. This chapter through the analysis of University value of judicial review, that judicial intervention in disputes both rationality and feasibility of higher education. Judicial review is the need of standardizing the management of college students'rights, is to safeguard the rights of college students need. I have come to the college students management of litigation practice:perfecting the Administration, update, efficient management, protect the legitimate rights and interests of students, promoting the educational legal system construction.Chapter four:Our country's university students'management behavior can accuse the concrete construction of system. This chapter to undertake chapter to the college student management behavior can accuse the legitimacy of points to its fourth can accusing the concrete construction of system on assumptions:first quarter, and points out that analyzes the current legislation still designated for education law, but through legal career civil legal person qualification to determine its responsibility, the reality of institutions in the legal status of fuzzy in legislation, so it should be for universities of accurate positioning. The second section puts forward the college student management behavior can accuse of scope, has the civil lawsuit sex education should be when college as the provider and student services occurred when the rights and duties in the relationship of equality, with the administrative behavior can accusing sex should be colleges have laws and regulations authorize implementation management student behavior, has the internal self-discipline can accusing sexual behavior should be school management in violation of property rights, the rights to students, educational and other basic rights. The third quarter offered to clear judicial review principle of the college student management behavior, including legitimacy principle, principle of limited principle and due process. The fourth quarter education justice system perfect our conception of concrete measures. Puts forward to establish and improve students' appeal system, establish special student education, set up the appeals committee to court and try to establish and perfect the education to the arbitration institution.