A Study Of Students' Status Punishment Power In Colleges And Universities

In the last few years, with the constant promotion of higher education in our country, the range of autonomy of the higher learning institutes running a school becomes larger and larger. Moreover, some profound problems of the management of higher learning institutes come out increasingly. The right of punishment is one of them.The current law of higher education gives higher institutes the right of punishing students, however, it doesn't make the clear regulation of some problems, such as the nature of punishment right of universities, what principles does it follow, what requirement of procedure does it have, and how do punished students seek relief, etc. So the phenomenon of punishing students at will appears in practice, and it is difficult for students'legitimate rights and interests to be protected. To the realistic problems, on the basis of the understanding of the management relation and basic relation theory, which were put forward by Wu Le, a German administrative jurist, this paper divides the punishment right of universities into two parts: the students'status punishment right and the students'non-status punishment right. And the author will focus on the former one.The paper obtains first from the analysis of the legal nature of students'status punishment right of universities, it holds that the students'status punishment right is a behavior of university exercising the public right, which has the obvious administrative invasion to the punished students. The author names it quasi-administrative punishment behavior, which is similar to the qualifications punishment in the administrative punishment.According to the stipulation of Administration Punishment Law, the formulation of qualification punishment only can be the law and the administrative rules and regulations, others have no right to formulate the students'status punishment right.The implementation of students'status punishment right must follow the principles of the rule of administrative law, it includes the valid principle,the proportion principle and the proper procedure principle in detail. It is the basic requirement of the rule of administrative law that providing the effective relief for the status punished students. The relief mechanism mainly contains the appeal system,the administration reconsider system and the administrative litigation system.