Discussion On The Nature And The Position Of Chinese Public Higher Educational Institutions

With deep transformation of the government functions, the reform of the educational system of our country, especially the system of higher education, has entered key period. But educational circles and law circles do not dabble in the relevant radical questions of higher educational institutions, and only cast sight on the hot questions of them. So, the two cases that university students sued their Alma Mater had aroused the attention from various circles of society when they were made public at the end of the late century. The end of the state of " no case to court "in higher educational institutions has reflected the enhancement of the legal consciousness of social groups and individual person. But at the same time, it is exposed that the judicial practice is mixed because of the deficiency in research on the nature and the position of higher educational institutions .So the author elaborates the nature and the position of Chinese public higher educational institutions from two aspects, and attempts to offer a new way of thinking for the subjects that are similar to higher educational institutions. Generally, this thesis includes the following two parts. The first part is the nature of Chinese public higher educational institutions. There are three kinds of most common views on higher educational institutions at present. First, it is the official view that the higher educational institution is regarded as " the public institution ". The General Rules of the Civil Law issued in 1986 stipulates public institutions with legal person's condition have legal personalities, but higher educational institutions were not included in them at that time .The reason was that the relationship between higher educational institutions and the government was executive membership at the beginning of the reform of the educational system. So higher educational institutions didn't have independent legal personalities, and not belong to public institutions. After this, Education Law and Higher Education Law stipulate the legal personality of the higher educational institution clearly, and the nature of the higher educational institution has been defined as the public institution afterwards. However, the public institution appears and stipulates as the civil subject in laws all the time, and is not mentioned in public law, especially in administrative law. It caused confusion about the nature and the position of the public institution in administrative law. There are many relations in practice of higher educational institutions, so it will lead to the deficiency in the public law status of higher educational institutions. Second, it is the traditional opinion of administrative law circles of our country that the higher educational institution is regarded as " the authorized organization by laws and regulations ". This view is right only in theory. But when examining it from the overall angle, no matter from the higher educational institution's own characteristic and power source, or from the realistic judicial practice, it is found that the nature of the authorized organization by laws and regulations doesn't contain that of the higher educational institution. To a certain extent, this error comes from the limitation of the authorized organization theory itself.Third, it is the attitude of some scholars of our country recently that the higher educational institution of our country is determined as " the third sector". The theory of the third sector is proposed by the American scholar .It is comparatively full-developed in the west countries, especially in U.S.A. The circle of theory of our country has various opinions about the standard of the third sector , so it isn't suitable to define the higher educational institution as the third sector when the third sector is not stated clearly. By analyzing above three views on the nature of public higher educational institutions of our country, I think it is suitable to define the public higher educational institution as " the legal person of official business". This concept of "the legal person of official business" do not stem from our country. It is studied initially by administrative law scholars of Germany and France. After this, a great deal of countries of the Civil Law System borrowed this concept. There are different names in different countries about this concept, and scholars of our country called it " the legal person of official business ". The legal person of official business is part of the public legal person in essence, and it has distinct characteristics: First of all, " legal person " is the outer covering and form of the legal person of official business, and is the pre-condition of turning an organization into the legal person of official business. Secondly, " official business " is the kernel and basic reason to the existence of the legal person of official business. Moreover, the legal person of official business has relative independence, and this is the primary condition of the legal person of official business functioning. Finally, there are abundant and special legal relations between the legal person of official business and itsusers, which include not only the ordinary civil legal relationship but also the administrative legal relationship. It is favorable for us to define the public higher educational institution as "the legal person of official business", and it is conducive to realize the special function of the higher educational institution, to guarantee the independence of the higher educational institution, to settle the disputes in practice, and to clarify the nature of the subjects that are similar to higher educational institutions. So the author thinks, defining the public higher educational institution as "the legal person of official business" not only changes the name of the nature of the higher educational institution,but renews the administrative subject theory and protects the citizen rights and so on. The second part is the position of Chinese public higher educational institutions. By analyzing the present study on the public higher educational institution of our country, the theory circle always mixes the nature and the position of higher educational institutions together. But in fact, " nature " is the basic attribute that one thing is distinguished from the other things; and " position" is the status of the people or groups in social relationship. The position must be shown by relationship. As to higher educational institutions of our country, the final destination is to explicate the relationship between the government, students, teachers and it. First of all, the author discusses the relationship between the higher educational institution and the government. As a member of the social organizations, the higher educational institution must be managed by the government .At this moment, the mostdirect relationship between the government and the higher educational institution is the administrative relationship, namely the external administrative legal relationship. In addition, the government restrains and influences the educators and teachers by the administrative power through the higher educational institution. The higher educational institution is often considered as the authorized organization by laws and regulations at the same time, and the relationship between the government and the higher educational institution is the internal administrative legal relationship. So only defining the relationship as the external or the internal administrative legal relationship is wrong. The author thinks it should be the external and internal administrative legal relationship concurrently and what's more, I propose to stipulate the government's power, the public higher educational institution's autonomous rights and the shared power by both. Thus, the power between the government and higher educational institution is disposed clearly. In addition, the higher educational institution as the legal person of official business, not only has the essential attribute of fulfilling " official business", but also has the characteristic of " legal person ". So, the equal education civil legal relation can be formed between the government and the higher educational institution when the government is the civil legal person. Secondly, the author then analyzes the relationship between the higher educational institution and its students. The relationship between the higher educational institution and its students is most important among educational legal relations, but it always had been ignored by the circle of the theory of our country in the past. Foreign and domestic educational circles think the relationship between the two subjects is...