The Research On The Extra Power Relation In The Cases Of The Institutions Of Higher Learning

During the process to the Rule of Law in China, the legal problems in governing the institutions of higher learning emerge. The institutions of higher learning are sued again and again. A series of legal problems are concealed in the cases such as the value of extra power relation, the relation between the institutions of higher learning and the students ,the legal status of the institutions of higher learning, the relation between the judicial review, and so on.In the first chapter, the author introduces the traditional extra power relation theory ,which originated from Germany. Its basic feature is that judicial reservation doesn't apply to it and judicial review is excluded. During the process to Japan and Taiwan district, its applying scope is enlarged greatly.The second chapter introduces the oppugning ,the breakthrough and the development to the extra power relation, which we can call modified extra power relation. Since WWII, with the impacting of the principle of the Rule of Law and the theory of human right protection, the traditional extra power relation was animadverted widely and fiercely because it disregarded the basic rights of administrative opposite side. Many countries modified the traditional theory, among which Germany was the most representational. Two theories had far-reaching influence, One is basic relation and governing relation theory put forward by Professor Ule in 1956,which peeled off basic relation from the extra power relation and lessened the applying scope greatly. The second is the significance theory put forward by the Germany Federal Institution Court via a judicial cases, which had wider protecting scope of the basic human right and applied the principle of judicial reservation. It gave a fatal blow to the traditional extra power relation. Japan and Taiwan district took the same route approximately.The third chapter mainly discusses the adopting issue. In China, the name of extra power relation doesn't exist, but the fact of it does exist. To adopt the theory of modified extra power relation has its realism significance and existing foundation in the current period of the construction of the democracy and the Rule of Law.The fourth chapter analyses the legal status of the institutions of higher learning. The law pitches it to enterprise judicial person, the court pitches it to"authorized organization by the law and the statute". Considering the deficiency of both parlances, the author thinks that we should borrow the overseas theory and pitch it to"official judicial person".The fifth chapter researches the legal relation between the institutions of higher learning and the students. We think that the relation between them is neither common civil relation, nor common administrative relation, but a public law relation contains the factor of the extra power relation.The sixth chapter discusses how to let the sunshine of justice get into the palace of learning. The author puts forward following solutions: to borrow the overseas significancy theory; to definitude the official judicial person status of the institutions of higher learning; to adopt the Due Process principle ;to limit the scope of the courts'accepting cases and take the right of learning self-governing into consideration; the court should review the rules and the system of the institutions of higher learning, etc.