A Study On The Judicial Review Standard Of The Disputes Over The Awarding Of University Degrees

With the increasing cases of college students suing their Alma mater,college litigation seems to have been accepted by the society.One of the most common is the case between students and colleges in which the university refuses to grant a degree.If Tian Yong's case opened the door to judicial review of degree-awarding cases,He Xiaoqiang's decision may have established the standard for such cases--legality review.However,the reality of judicial review is not optimistic.The phenomenon that judicial judgment reflects different review standards and different judgments in the same case drives the theoretical circle to study such cases.However,many studies have not formed a unified view on legality review,academic connotation and censorship system,which makes the court in the dilemma even more confused.On one side is the university that enjoys the autonomy of the university,and on the other side is the student who is in a weak position.How to respect the academic autonomy of the university while maintaining the legitimate rights and interests of the student is the focus and difficulty of the judicial review standard.This paper first defines the relevant concepts,and points out that the university in this paper is the same as the university,the degree in China is not only a recognition of academic ability,but also an honorary title,both academic and administrative dual characteristics.From the perspective of comparative law,the author examines three modes of judicial review in the western developed countries.Secondly,by sorting out the cases,this paper analyzes the difficulties encountered in the theory of judicial review,and points out that the theoretical understanding of the "nature of degree granting right","academic matters" and "legitimacy review" is different,which leads to the break of the practical standard.On this basis,the realistic dilemma of the fracture of standards is examined: the judicial review has no clear basis because of the relatively lax legislative norms of degree awarding;The three relations of university degree,national degree and double meanings in the degree awarding should,actually and legally make the judicial review at a loss.The additional political and moral conditions that the degree conferment conditions should be,actually and legally reflect make the judicial review standard more confused.Then,before the reconstruction of judicialreview standards,relevant concepts and systems must be explained in theory,so that the reconstructed standards can stand the test of time.It is believed that the nature of degree granting right in China should return to the "autonomy of colleges and universities",and colleges and universities can set more strict conditions for their degrees above the minimum standards stipulated by the legislation.However,the "legitimacy review" should take the view of "substantive legitimacy",including the legislative purpose and principle of due process of academic degree legislation into the review standards,which can provide legitimacy for the legislation to take political standards as the conditions for granting academic degrees and judicial practice to review procedural matters through due process.At the same time,it is explained that academic connotation includes academic ethics,while cheating belongs to academic ethics and can be linked with the degree certificate,while moral matters belonging to non-academic ethics still cannot be linked with the degree certificate.Therefore,in the judicial review standard of degree awarding disputes refactoring is put forward under the front on complaint as a prerequisite for the legitimacy review "essence" of binary standard,which must have been a complaint before taking on judicial review procedure,procedural review under the substantive legitimacy review standard and entity content review.Procedural review should be based on the principle of due process.At the same time,the specific content stipulated by the school should be based on the purpose of "academic",and the judicial system could make a judgment based on the principle of "non-conflict" if it could not explain academic matters,which would not affect the academic freedom of the school but would reveal the real veil of academic freedom.By sorting out and reconstructing relevant systems,this paper hopes that judicial review,which has gone further than legislation,can continue to give play to activism and guide the way for legislation and school regulations.