Research On Educational Discipline Power Of Primary And Secondary Education Under The Rule Of Law

Education discipline refers to the duty behavior that schools and teachers stop,discipline or correct in certain way the students whose behavior is inappropriate or breaks rules and regulations in the process and management of education and teaching based on the purpose and needs of education,so that students can learn from that and understand and correct their mistakes.School disciplinary power comes from the national education law.Based on the general authorization of the law,teachers form a special power relationship with students to carry out the activities of discipline.Educational disciplinary power should be regarded as or further defined as a "power" of the educational subject.Education disciplinary power is not considered as the "right" of discipline subject because it does not reflect the recognition and protection of the interests of discipline subject in the process of its operation,and does not have a relatively free optional nature in the exercise.It will not be able to guarantee the mandatory,compulsory and normative nature of educational discipline activities if the disciplinary power is regarded as the professional right of teachers.There are many problems in the practical operation of the disciplinary power of primary and secondary education in China.In the aspect of discipline subject,the administrative subject qualification of primary and secondary schools in the exercise of national educational public power has not been clearly established by law in China;in the aspect of norms and systems,firstly,the educational disciplinary power lacks a logical and complete system of educational discipline norms to guarantee its implementation;secondly,the existing educational discipline measures based on school sanctions are difficult to meet today's complex requirements;Moreover,the school has no way to deal with the students who have extreme anomie behavior,do not change after repeated education and are not afraid of the existing discipline measures.The system of "three consents" for admission to a special school has raised the threshold for students to enter the school and receive correction,and increased the difficulty of helping them.In the aspect of student rights relief,the channels of administrative litigation relief are not clear,and it is difficult for the students to get the judicial relief who get the severe discipline measures just like ordered to quit school or expelled from school.Therefore,in the practice of the operation of the disciplinary power of primary and secondary education in our China,we should make clear the basic principles such as cultivation-orientation,legal compliance,appropriate discipline,security guarantee and so on,and make the legal improvements as follows: firstly,it should clear in the empowerment of the disciplinary power of education at the legal level,and establish the legal status of the disciplinary power of education.Secondly,it should build a set of legal system of discipline norms with clear logic and the national educationdepartment and all localities should formulate implementation rules in detail for the operation of educational disciplinary power to ensure the operability in dealing with specific issues.At the same time,it is necessary to clarify the nature and function of school rules,and their formulation and implementation should meet the requirements of laws and regulations.Thirdly,it should set up multi-level education discipline measures,bring the traditional school discipline into the education discipline standard system,and set up different levels and types of discipline methods according to the nature and degree of students' misconduct.Fourthly,it is necessary to provide special schools for students with extreme misconduct,reform or cancel the "three consent" enrollment system,and try to restore or explore the establishment of a more compulsory enrollment system for qualified students,so as to give full play to the correction function of special schools.In terms of the responsibility for the exercise of the educational disciplinary power,the relevant personnel in charge of the school shall bear the administrative responsibility for the violation of the disciplinary power,resulting in the infringement of the rights and interests of students,as well as the no fault vicarious liability of the civil liability arising from the infringement of teachers;the teachers shall bear the administrative responsibility arising from the infringement,as well as the civil liability recovered by the school and corresponding to their fault,In the case of the establishment of a crime,criminal responsibility should also be borne.In terms of the relief of students' rights,it should reform that the scope of accepting cases in the existing laws on the way of appeal and litigation,especially to identify the qualification of schools as the main body of administrative litigation,and bring the serious discipline measures that have an important impact on students' basic right to education into the scope of accepting cases in administrative litigation.