Research On Administrative Remedy Of University Students' Rights

Since the modern time, the theory of privilege relationship has been deserved by most countries with continental law family. Instead, the basic human right safeguard principle, legal retention principle, judicial review principle and other administrative law have been applied in the field of Privilege relationship. In the mainland of our country, we are influenced by the theory of "the internal management behavior never sues", so some college students whose human right is infringed cannot get valid administrative remedy. It is against the modern law and the development of legal system.Recently, claimant cases from universities has turned up frequently and got resolved in such a complicated way. On one hand, this phenomenon attracts attention from the society particularly the law field and administration of justice. On the other hand, such kind of cases reveals the problems of the theory of administrative subject, of the Status of subject of administration for universities, of the relationship between students and universities, of managerial power, and of remedy of students' rights. Those problems are never resolved through adjudication at the court, never get satisfactory answers from some researches by some scholars and neither gets the authoritative judicial interpretation. Some problems will go on and on. Therefore, the research on administrative remedy of university students' rights has theoretical and practical significance at present. The resolve of the problems of administrative remedy of university students' rights can help universities perfect their system of students' rights protection and also reform our administrative law system through the study on the theory of subject of administration and the theory of administrative remedy.This paper stands on the point of the state of human right administrative remedy for university students in China. It starts from the general principles of rights remedy, analyses the rights of university students, the Legal localization of universities, management right of universities and the relationship between the university and the students. It also analyses the necessity of setting up the rights administrative remedy for university students, clears the influencing reasons for the light administrative remedy for university students. After comparing the differences of legal system between the mainland and Taiwan, the author puts forwards the correct from of administrative remedy for university students in the universities in our country, including appeals, administrative review and administrative procedure.This paper applies the means of practical analyses, comparative study, historical study and case study, according to the logic of "analyzing the basic theory—analyzing the current problems and reasons—suggestions for perfecting the system". The author creatively demonstrates the insufficiency for the same legal status for the civilian-run universities and state-run universities and reveals the diversity of university managerial power and character, especially the necessity of administrative remedy of university students' rights. It sets up the foundation of the system of administrative remedy of university students' rights. In the part of analyzing the current problems and reasons, this paper comes up with the lack of administrative remedy of university students' rights and the difficulties on the further part of this issue. The paper in this part plans to prove: the system of administrative remedy of university students' rights is not an isolated issue, but a problem referring to the basic administrative law, the theory of administrative subject in our country and the theory of administrative remedy. At present, our country does not move forward in constructing the system of administrative remedy of university students' rights and the deeper reason lies in the law making authority, the court, the educational administrative departments and the deserve of the theory of privilege relationship and inner administrative act, the introduce of university self-control and judicial review, and the selective difficulty between university management order and students' rights. In the part of suggestions for perfecting the system, the paper puts forward some ideas after analyzing the differences of legal system between the mainland and Taiwan, so as to supply some experience for perfecting the system of administrative remedy of university students' rights. In this part, as for the suggestions for appeals system of administrative remedy of university students' rights, the system of administrative remedy and the system of administrative procedure, most of them are the creative ideas proposed by the author through studying those related law and the theory of administrative remedy.