Research On Legal Risks And Prevention Mechanism Of Expulsion From Colleges And Universities

Expulsion from school is a kind of disciplinary action taken by colleges and universities to students who violate laws or disciplines.In recent years,there are more and more disputes caused by the expulsion of students from colleges and universities.The author collected the legal documents of administrative litigation caused by the expulsion of students from colleges and universities from 2011 to 2019 from the Chinese judicial document network,and found that the cases of losing lawsuits in Colleges and universities accounted for about 47%.Expulsion from university is a kind of punishment and education for students,but if it goes beyond the limits of law,it will not only affect the future development of students,but also damage the reputation and credibility of universities.At present,the academic research on the disposition of expulsion mainly focuses on the nature of the disposition right,the procedure of the disposition right and so on.Therefore,the legal risk and prevention mechanism is not only the practical need to solve the lack of management in Colleges and universities,but also the call of the era to realize the fairness of educational rules.From the perspective of the administrative litigation caused by the expulsion of students from colleges and universities,combining with the knowledge of administrative law,pedagogy,management and other disciplines and 26 cases of losing a lawsuit in Colleges and universities,and using case law,literature law,interview,questionnaire and other methods,this paper summarizes the types of legal risks in the exercise of the right of expulsion of students from colleges and universities.Based on the analysis of the causes,it puts forward the prevention mechanism of legal risk.Specifically,the paper consists of the following four parts:Introduction: it mainly explains the reason of choosing the topic,the current situation of the research,the basic ideas and methods of the research.Under the background of running the university according to law and building a harmonious campus,it is of great significance to study the legal risk and prevention mechanism of University expulsion from the perspective of administrative litigation for promoting the construction of the rule of law and realizing the healthy development of universities in China.The academic circles of our country have already involved in this problem,but they mainly focus on the theoretical aspect.The author hopes to analyze it from the perspective of administrative litigation,in order to provide some useful and operable preventive paths for the administrators of colleges and universities in our country.Chapter one: the legal risks in the punishment of expulsion from university.The author collected the legal documents of administrative litigation caused by the expulsion of students from colleges and universities from 2011 to 2019 from China judicial document network,and got 55 effective legal documents after eliminating the duplicate ones and the consistent results of the first and second instance decisions,among which29 cases were won by colleges and universities.Based on the analysis of 26 cases of losing lawsuits in Colleges and universities,it is found that there are five legal risks in the exercise of the right to dispose of the expulsion of students in Colleges and universities,including the application of laws and regulations,the formulation of the rules of punishment,the exercise of the autonomy of management in Colleges and universities,the collection of evidence,and the procedure of punishment.The second chapter: the analysis of the causes of the legal risks in the disposal of expulsion from university.After analysis,the legal risks in the disposal of expulsion from university are mainly caused by the lag of relevant theoretical research,the flaws of the basis of the disposal,and the anomie in the governance of University.The lack of theoretical preparation,such as the unclear definition of the legal status of the University,the inconsistent understanding of the relationship between the University and the students,and the unclear nature of the disciplinary action in the University,leads to the lack of legislation in laws and regulations,the ultra vires and confusion in the formulation of disciplinary school rules;the lack of legislation in laws and regulations,and the problems in the disciplinary school rules will inevitably lead to the loss of norms in the governance of the University.The third chapter: the prevention mechanism of the legal risk of expulsion from university.As for the prevention mechanism,the author thinks: first of all,the legislation should improve the provisions on the legal status of colleges and universities,the scope of administrative authority of colleges and universities,the procedure of exercising the right of disposition of expulsion,and the act of disposition of expulsion into the scope of judicial review.Secondly,improve the legal advisory system in Colleges and universities.Colleges and universities should let the role of the legal adviser system run through the whole process of the establishment of disciplinary rules and the exercise of disciplinary powers,try to reduce the legal risk in the disciplinary action of expulsion through the legal adviser system,and play the role of prevention and control in advance through the legal adviser system.Finally,improve the appeal system of students in school.Colleges and universities should let students' appeal system play the role of firewall,because students' appeal system as the only way of school relief,if it can give full play to the role of students' Appeal Committee(hereinafter referred to as "learning application committee"),it can dissolve the spear and shield of students' expulsion from school and reduce the occurrence of legal risks.Conclusion: the disciplinary action of expulsion from university is a specific administrative action,which can be sued.Students who refuse to accept the disciplinary action of expulsion from university can sue in the people's court.The legislative organs should perfect the normative legal documents,the universities should regulate the exercise of the right to dispose of the expelled students' status,the legal advisory bodies should formulate the legal and reasonable rules for disposing the students' status,and the "academic application committee" should give full play to the role of resolving.Through these remedies in advance,the legal risks in the disposal of the expelled students' status can be resolved in the University,which is conducive to reducing the time cost and material cost of relief and improving the behavior of the expelled students In order to repair the damage of the relationship between the University and the students and realize the harmonious coexistence of the University's independent management right and the students' right to education.