Research On The Application Of Due Process Principle In Degree Dispute Litigation

From the "Tian Yong Case",the issue of degree award procedure and judicial review has been paid more and more attention by the academic circles,but it is only discussed around the application of the principle of due process.In fact,as a special administrative subject,colleges and universities integrate administrative power and academic freedom right.Therefore,the connotation and attribute of degree granting procedure also have some particularity,and the judicial review of degree granting procedure is different.The nature of the degree granting procedure can be defined according to the nature of the degree granting act or the right to grant the degree,and it can be regarded as the combination of administrative procedure and other general legal procedures to exercise the right of academic freedom.As the degree granting procedure of administrative procedure,the court can draw from the provisions of administrative procedure for its judicial review object,review intensity,review standard and review results;considering the nature of other general legal procedures that the degree granting procedure has the right to exercise academic freedom,the judicial review of the court should also be different from administrative procedure and give space for the exercise of academic freedom.At present,there are still many deficiencies in judicial review of degree granting procedure:the existing legal norms on the degree granting procedure are not perfect,and the draft of degree law（Draft for advice）in march2021 will discuss the legislation of degree granting procedure on the agenda for many years.In terms of the intensity of examination,the court scrutinizes the autonomy enjoyed by colleges and universities,and does not have enough power to examine the internal administrative procedures and time limit issues in the degree granting procedure,and the academic freedom right in the degree granting procedure is difficult to balance with the judicial power of the court.In terms of the examination standards and results,the situation of "violation of the principle of due process" is not unified,the application of "procedure is slightly illegal" is absent,and the problems that constitute "procedural defects" are lack of effective guidance.Therefore,for the above issues in the judicial review of degree award procedure,the court needs to improve the degree of attention to the review of degree award procedure.Specifically,in terms of the review intensity,the court should distinguish the internal procedure in the degree award procedure from the ordinary internal administrative procedure and conduct comprehensive judicial review.At the same time,we should not only respect the exercise of academic freedom right in Colleges and universities,avoid damaging the principle of academic privilege in the examination results,but also let judicial power intervene in the expert evaluation process to ensure the standard exercise of academic freedom right.In terms of the examination standards and results,we can consider that the "violation of the principle of due process" should be considered as "abuse of procedural rights",appropriately refine the recognition of "minor procedural violation",and follow up and correct the "procedural defects" in the degree granting procedure,and standardize the operation of the procedures.