Research On Higher Education Contract In Civil Law

"The education teaching take the student as the standard has become mutualrecognition of the social now", but along with the expansion of the scale of the universities and the enhancement of the independence of the universities'running, the legal matter even more suddenly reveals in universities. In recent years, the education case appears increaseingly between the universities and the undergraduates. The same kind of the issues also has the different judgment in the judicial practice. The basis sickness point of creating this phenomenon is that it is not cleared off the relationship and the nature between the universities and its undergraduates. Therefore, in order to strengthen the standard of management, enhance the quality of the higher education in universities, moreover it can reduce the legal dispute of the higher education, unify the suitable standard of law in the case, it is very important to know that the most basic and the chief legal relationship between the universities and its undergraduates is the civil contract relationship. The article conducts the research on the higher education contract related question by the explanation study and the law economic research technique, is to speeds up the process of the legal system of higher education of the country.The article divides into three parts: the preface, the main text, the conclusion.Preface: The most basic and the most main legal relationship between the universities and its undergraduates is the contract relationship. It should explan and analyse the higher education contract based on the theory of the contract law. The main text is composed of the five parts:Part one: Civil law limits of the higher education contract. The higher education contract is the civil contract signed between the legitimate full-time universities which conducted by the country or the social strength and the qualified students who has completed the senior high school. The higher education contract has the civil legal nature in the main body, the object, the content. The main body has relatively specific characteristic; The object has invisible characteristic; The fulfill has the complex characteristic; The form has format characteristic, as well as the non- immediate payment characteristic. According to the educational system, The higher education contract may divide into the full-time higher education contract and the non- full-time higher education contract; According to different methods of the fulfills ,it may divide into the classroom higher education contract and the distance learning contract; According to the different goal, it may divide into the school record ,the degree higher education contract and the non- school record, the non-degree higher education contract; According to the different signed process ,the higher education contract also may divide into the higher education appointment contract and the higher education this contract. On macroscopic aspect, the higher education contract can give the national education laws and regulations a good effective implementation and the harmonious development of the plan of the higher education; On the ideological recognition , it can renew the higher education idea and result to adapt the request of the development of our harmonious society; On the legal principle theory , it can straighten the legal relationship of the higher education, enhance the higher education benefit.; In judicial practice, it can make a effective prevention and solution about the higher education dispute.Part two: Searches and analysis of legal relationship of the higher education contract. The legal relationship of the higher education contract is refers to the relations of the rights and the duties formed between the universities and its undergraduates who has signed the higher education contract in the process of the higher education service. The legal relationship of the higher education contract is the higher education relations adjusted by the contract law and the laws and regulations of the education law altogether; it is the law relations between the universities and the undergraduates; it is also the relations of the right and the duties. The universities and its undergraduates which enjoy the rights and undertake the duties are the main body in the legal relationship of the higher education contract. . The service behavior as well as the technical achievement which is made in this behavior should be the object. The universities and the undergraduates have the alone right and the voluntary content in the process of fulfilling the contract.Part three: The conclusion of the higher education contract .The consensus reached by the litigant can conclude the higher education contract. The higher education contract based on the process of concluding the treaty is to be possible to divide into the higher education appointment contract and higher education this contract. The offer of the higher education appointment contract is the behavior of recruitment information issued by the institutions of higher learning .And the acceptance of it is the entered behavior of the student aimed at the recruitment information made by the specific university. The behavior of providing the admission notice to the specific students is the offer in higher education this contract. And the registration behavior of the student depended on the request of the university is the acceptance of the higher education this contract.Part four: The responsibility of contract-breaching of the litigant in the higher education contract. According to the different process, the contract-breaching of the litigant in the higher education is divided into concludes a treaty error, anticipatory breach of contract, actual breach of contract., and breach the contractafter obligations, each stage has its own obligations. The main situation of concluding the treaty error in the higher education may include: conceals intentionally the necessary facts related to concluding the contract or provides the false information; Wilfully abolishes the offer which cannot be abolished; Violates the preliminary agreement or the promise; Not arrives the protection duty; unauthorized agency; Malicious consultation; As well as the behavior of other violate the principle of good faith and make the damage to the other party at the same time in the process of concluding the contract. If when one party makes the damage to the opposite party caused by deliberately or by objective facts during the contract becoming effective and has not fulfilled. It should undertake the responsibility of anticipatory breach of contract to the opposite party. When the contract is effective, the party which is not fulfill the responsibility or the result of the fulfill cannot conform to opposite party requirement completely, this party should undertake the responsibility of the completely breach of contract and compensate the losses the opposite litigant. The party of the higher education partially fulfilled the main body, the object, the quality, the cost, fulfills the place, fulfills the way, deadline content and so on,and thus caused the right requirement of the opposite party cannot be satisfied totally ,and made a loss to the opposite party , at this time ,the party caused the losses to the opposite party should undertake the responsibility of partially breach of contract. After the higher education severability of contract, according to the principle of good faith, the litigants of the contract also must undertake the liability of the notice, the assistance, the security and so on. When it occurs legally or engaged exemption clause. They do not need to undertake the liability of higher education.Part five: The ponder about fulfills the higher education contract effectively. In our country, in order to change the lag of education legal system, improve the effective supervising to the profession of higher education of administrative department of higher education, it is necessary to put the higher education contract existing in real life largely into law .and give the standard in the contract law . The highereducation contract should give the standard in the contract law. The higher education administrative department should give the surveillance with the purpose of having a good implement of the higher education contract.Postcript : summarizing the gist , and the paper is over.