The Study On The Due Process Of The Punishment On Students In College

The concept of"Due process"comes from English common law tradition of"the principles of natural justice". It has two basic rules of procedure: first, any person or group in the exercise of power that may be adversely affect other people must listen to the views of the relative side, and each individual has the right to defend themselves; second, no person or group can serve as the judge in his own case. With the continuous expansion of executive power in modern society, the scope of application of the principles of natural justice has also been expanded from only the judicial field to the administrative field. After that, the concept of"due process"was inherited by the United States, where it is now a constitutional principle with the history from the"natural justice"to"due process". The legitimacy of due process should include three elements, namely openness, justice and participation. The application of due process of law to control the government's power and to protect the legitimate rights and interests of the citizens is in line with the development trend of administrative law, and this idea has been recognized by more and more countries.Colleges and universities, in order to achieve their educational or management purposes, can make a punitive measure to students who breach specific obligations in accordance with national laws and regulations and school rules and regulations. The due process of the college to punish the students is feasible. First of all, the punishment is an administrative behavior, which should be subject to the constraints of the principles of administrative law and thus the due process may be applied here. Second, the rules and regulations of college management are maturing day by day, which provides the normative basis of due process for the punishment. Third, the judicial review of the court on the colleges'punishment forces colleges and universities to increase the emphasis on the legitimacy of punishment procedures, which is the greatest impetus to the application of due process here. Finally, foreign theories and practices provide experiences on the punishment of college students. In addition, the application of due process applies in the punishment behavior of colleges and universities is also very necessary, which can effectively prevent the abuse of discretion and enhance the legitimacy and credibility of the punishment decision, thus to protect the legitimate rights and interests of the students who have been punished.The due process requires that the right to know, statements rights and right to be heard of the punished students should be protected. Before the decision, the colleges and universities should inform in writing the student of the content, the reasons and basis of the punishment, and the procedural rights that the student have. Then the colleges and universities should listen to statements and representations of defense of the punished student. For the decisions which affect important interests of the student, such as expulsion, drop-out and so on, a hearing should be hold. In addition, the decision-maker should not be interested in the case, nor have preconceived prejudices of the case. The final treatment decision, together with the ways of relief should be delivered on time to the student.In China, college administrators have long been influenced by the legal tradition of"heavy entities, light procedures"and lack of the concept of due process. Lack of the due process has become a prominent problem in the punishment of college students. Colleges and universities do not take any action before the students to be punished to explain the basis and grounds of punishment, fail to inform the students of the legal approaches for remedies, ignore the investigation and collection of evidence before the decision, make hasty decisions before the identification of harmful levels. College Students punishment hearing system is usually a mere formality, which cannot play its role as the safeguard of the legitimate rights and interests of students. These disadvantages lack of due process, not only infringe upon the legitimate rights and interests of college students, but also make the punishment lose its credibility and impartiality, giving rise to the contradiction between the university and students.In the context of the rule of law, in order to safeguard the impartiality and rationality of decisions on punishment of college students and to achieve the purpose of the management and education, the punishment behavior to students in colleges and universities must be included in the legal system. With the legitimization of the college management, it is necessary to reflect on and refine the punishment to make it more in line with the spirit of the rule of law. Therefore, the informing system, the evidence system, the hearing system, the delivery system and the internal complaint system shall all be improved for this reason.