An Analysis On Bian V. Municipal Education Commission’s Appeal

Bian is a sculpture student of a College of the Arts2002grade, The examiner found he was carrying exam prohibits electronic communication devices into the examination room when he participate in the2007postgraduate entrance examination, So Bian was expelled from the College. Bian request a hearing and appeals to the school, But he refuses to accept the right school hearings and appeals process the results, Upon such review, the City Board of Education to make the word of the teachings Province (2007) decision No.13, to maintain the school made a Roll expelled from the edge of the sanction decision, while a satisfied with the decision made by the City Board of Education, Bian refused to accept the decisions made by the City Board of Education, to bring an administrative lawsuit to the court. In the first instance, a side claimed that:defendant incorrectly qualitative examination disciplinary offense for the exam cheating and improper application of law in the punishment decision, resulting in the apparent emphasis of the decision on punishment, while the school withheld items failed to plaintiff to provide receipts, resulting in punishment in violation of procedure, it shall revoke or change its decision on punishment of expulsion. Parties around the plaintiff acts are the acts of cheating on exams or exam cheating, administrative penalties should apply the principle of subjective imputation principle or objective imputation, the school made the punishment should apply to National Education Examination irregularities approach "or the " University student regulations" and the administrative procedures illegal necessarily lead to invalid administrative penalties focus of controversy, This matter behind the legal issues involved in the definition of acts of cheating on exams and exam cheating, administrative penalties applicable to responsibility principle, the legal consequences of legal norms of conflict resolution principles and administrative procedures illegal. Examination on the legal significance of disciplinary offenses and cheating behavior belong to the same examination irregularities, the definition of acts of cheating on exams and exam cheating, shall be in accordance with the provisions of Article5and Article6of the National Education Examination irregularities approach inside to treatment. There are four kinds on administrative penalties attributable to the doctrine of the theoretical principles, but because of the lack of theoretical support of the objective attributable to the principle of rationality, the administrative punishment resides in the subjective fault of the actors, combined with general liability constitute the point of view, the analysis of the theoretical and extra-regional countries experience in administrative penalties subjective Liability Principle gradually become the mainstream of attribution theory of administrative penalties. However, because the current administrative penalty Act does not expressly provide a subjective Liability Principle, and so cause people to apply to the principle of what imputation has been debated. In fact, explain the point of view of legislative technique, the Administrative Punishment Law contains legal and related authorities of China’s "Administrative Punishment Law" is essentially adhere to the subjective fault attributable to the principle. Also be noted that, through the application of the presumption of fault, in reality, in both fair and efficient administrative penalties under the principle of the subjective Liability Principle. Accordance with the relevant provisions of China’s Legislation Law, when the legal norms conflict, mainly the upper method is better than the next law principles, the special law is superior to the general law principles, and the new law is better than the old law principles to resolve. But this three legal norms conflict solve the principle is not no limit, the emergence of higher-level laws priority applies to subordinate laws made special note, only priority applies to lower level law and common lower level law priority applies to the main there are alternative provisions of the lower law the law takes precedence over lower priority application and implementation of the provisions applicable to both cases. Special law principle of general law, can only be applied in the same agency to develop legal norms conflict. For the special law is superior to the general law principles only apply to laws and regulations enacted by the same agency, can not be applied the same legal law. When there are special law is superior to the general law and the new law is better than the old law applies to competing, not only need to analyze specific issues, you also need the help of a special legal instructions to select the application of the appropriate principles for a settlement. The effectiveness of administrative procedures is illegal does not necessarily lead to substantive justice substantial damage, depending on the treatment of illegal administrative procedures, administrative acts in violation of procedure resulted in administrative actions ultimately manifested form of ineffective and effective two effect form. Administrative procedures resulting in illegal administrative act shall be confirmed invalid or revoked, the administrative act is regarded as the beginning not take effect. Administrative procedures are generally illegal has not been revoked, or only minor administrative procedures illegal administrative act has been effective, In addition, administrative procedures have been identified illegal administrative act is valid. Through the legal issues involved in the case a focus of controversy, one can assume the act of cheating in examinations of equipment prohibited by the provisions of the plaintiff to carry the examination to enter the examination room, their behavior is of course, has a fine, and regulations of the defendant for "University students" punishment on the plaintiff to comply with the law, the punishment is not inappropriate, though a slight flaws of the administrative procedures, but does not affect the effectiveness of the administrative penalty.