On The Legal Status Of Teachers In Elementary And Secondary Public Schools In Mainland China

The purpose of this research was to probe into the legal status of teachers in elementary and secondary public schools in Mainland China. The legal status of teachers is, by definition, the teachers' legal personality and his rights, responsibility, ability and inability. It is an important topic in theory, research and practice of Chinese educational law. The research on it has great theoretical value in prompting educational law research and constructing educational law theory. Also, the present work has practical implications. It is of great help to regulate government' s and schools' administrative behavior, to protect the teachers' rights and facilitate the reform of teachers' employment system.The study begins with the historical review of the legal status of teachers in China from 1949 to now, arguing that the legal status of teachers are ambiguous hi the transitional stage. Then, the article analyzes the factors affecting the legal status of teachers in a broader social context. Based on this, the paper approaches the legal status of elementary and secondary teachers in the main body of the study. The results showed that, (1) with the foundation of compulsory education and teacher education system in history, the public education teachers were traditionally either National civil servants in countries with continental law tradition or public employees in countries with common law tradition. The teachers' duties as public employees were covered by public legal contract. Moreover, the teachers' rights are less restricted than civil servants due to their rights to pedagogical freedom. Since middle 1980s, A certain tendency has been observed to grant more autonomy and responsibility to localeducational authorities and schools. As a result, many legislative and regulatorychanges come in response to international trends. The distinction between a statutory and a contractual legal position of teachers has become so small that the status of public civil servant is being challenged. As was finally established, the nature of civil service of teacher profession are still maintained but with some new characteristics. (2) Comparative study and jurisprudence analysis showed that Chinese teachers' appointment system reform doesn't necessarily altered the civil service relationship between the teachers and the state. The teachers are still statutory employed by the education department at the country level or above. The traditional civil service relationship between the teachers and the state were not altered but were given some new characteristics with a view to encouraging secondary and primary school teachers to do better and more creative work. The teacher contracts are more like administrative or public contracts than labor contracts or civil contracts. Public law not Labor law regulates the labor relationship between teachers and local education departments. The state shall guarantee the teachers' lawful rights and interests. The life-long employment is possible for the excellent teachers and the school principals can't discharge the teachers unless they violate the provisions written in education law. (3) Under the present legislation model for civil servants and non-civil servants individually, the teachers belong to the civil service and they are civil servants with its particularity. The legal relations between teachers and the local education department and school are public and civil legal relations individually. The urgent work for us now is to forward and better the special legislation for teachers.In the final part, the article dealt with the realization of the public employment legal status of teachers, providing some legislative and judicatory suggestions about the procedural protection and legal remedies of teachers' rights.