The Judicial Balance Between The Right Of Punishment And The Right Of Student’s Identity

Since Tian Yong’s case against Beijing University of science and technology,there have been more and more administrative lawsuits against the University.This also caused the widespread concern of the academic community.However,there is a lack of relevant research on identity disciplinary cases in Colleges and universities,and few scholars pay attention to the path of judicial balance.In the judicial review of status disciplinary cases in Colleges and universities,the court makes clear the standard of judicial review intensity based on the application of relevant legal principles,and at the same time chooses a reasonable legal interpretation path in the judgment.Although some scholars have thought about the relevant issues.However,from the current published literature,these reflections are still relatively rough,because few scholars make a detailed division of the types of disciplinary behavior in Colleges and universities,and on this basis,discuss the specific path of judicial balance in detail.At the same time,because the relevant research in the academic circle is not sufficient,it also leads to the insufficient supply of the legislative theory and practice under the guidance of the judicial balance in China,which is manifested in the following aspects:more framework and principle legislation,less procedural and executive legislation;more empowerment legislation,less regulatory legislation.When colleges and universities exercise their disciplinary power,they are at a loss because of the vague provisions of the superior law exposed in the judicial balance.Even because of the lack of relevant provisions,they abuse their power and are sued,which makes the balance of disciplinary power and student’s identity power in Colleges and universities in a state of tension.Therefore,starting from the case of Ganlu v.Jinan University,this paper makes a comparative study on the experience of this kind of case balance in judicial adjudication in the past three years,and tries to find a new way for the judicial balance of disciplinary power and identity power on the basis of exploring the focus of academic dispute on the path of judicial balance between disciplinary power and student identitypower.The judicial balance of the conflict between the disciplinary power and the student’s identity right in Colleges and universities needs to strengthen the effective legislative supply,that is,the legislation should clearly distinguish the academic affairs and the non academic affairs on the premise of abiding by the principles of legal reservation,due process,proportion and human rights protection,and then make a more detailed division of the disciplinary behavior in Colleges and universities according to the different categories There are different ways to balance the punishment behavior.At the same time,in the judicial practice,the judicial organs should take different intensity of judicial review according to the different nature of disciplinary actions in Colleges and universities.At the same time,they can also appropriately introduce the theory of Alexei’s principle regularization to provide new ideas for the judicial balance of law.