On The Judicial Review Of Internal Regulations Of Universities

Since the Tianyong case,the internal rules and regulations of colleges and universities have come into the view of judicial supervision,which is accompanied by the disputes on the legal status and the nature of the internal rules and regulations of colleges and universities.It is a mainstream practice to position the legal status of universities as public corporations and to confirm the reviewability of the internal regulations of universities.In our country,colleges and universities belong to what kind of subject,there is no clear rule of what kind of internal rules of colleges and universities belong to,which causes courts to have different standards for the review of internal rules of colleges and universities.From the classical and common cases of educational administrative litigation,it is inevitable that the internal rules of colleges and universities enter the category of judicial review.Some internal rules of colleges and universities lack legitimacy and even go against the will of the state.The behavior of colleges and universities is not a vacuum area of judicial supervision.In order to effectively solve educational disputes,the theories behind the internal regulations of colleges and universities should be deeply explored.The review of the internal rules of colleges and universities should follow the basic principles,and carry out the specific review work under the guidance of the basic principles.The principle of incidental review is the guiding stone for the internal rules of colleges and universities to enter the category of judicial review.The principle of legality is to examine the "legality" of the content of regulations;The principle of due process is to examine the application of internal rules and procedures in universities.The principle of limited review reflects the scope and intensity of review.These review principles run throughout the judicial review and have a decisive impact on the outcome of the case.As for the specific examination of internal rules and regulations in colleges and universities,the scope and intensity of the examination are the two most important issues.There is no uniform identification of these two issues in law and practice.The scope of review belongs to the breadth of review,which refers to what kind of internal rules and regulations of colleges and universities can enter the scope of judicial review,mainly including the internal rules and regulations of colleges and universities of school roll management and degree awarding.In practice,because the expulsion of school and the decision not to award a degree are often associated with disciplinary punishment,this paper does not list the internal rules and regulations of universities classified by disciplinary division into the scope of review,but discusses the internal rules and regulations of universities classified by school roll management and degree awarding together.Intensity of scrutiny refers to the depth of scrutiny.The internal rules and regulations of colleges and universities with school roll management should be strictly examined,and the examination mode should adhere to a comprehensive review,and the identification of facts,the application of law and legal procedures should be examined.The examination standard should adhere to strict examination.More importantly,it is necessary to review the internal rules and regulations involving substantive disputes,so as to completely resolve the disputes between the parties.For the internal rules and regulations of academic degree management universities,the review mode should adhere to the partial review mode.The court can review the factual issues of academic matters,but should avoid the substantive judgment of the academic.The examination standards should adhere to strict examination standards that do not involve the identification of academic issues.What is more important is whether the facts related to the decision of the university are in line with the constitution of the decision of the university of degree management internal regulations,which is the key to determine whether the dispute can be truly resolved.Procedures should be strictly examined,while avoiding fictitious litigation,in order to resolve substantive disputes.