公法视野下的高校学生惩戒研究
发布时间：2018-09-19 20:00
【摘要】：高等学校学生惩戒行为是指高校为了实现教育或者管理上的目标,根据国家立法和高校的章程、规范,对违反特定义务或者没有达到规定要求的本校学生施以的致使其承受不利负担的非难性或惩罚性措施,而这些非难性或惩罚性措施必须是高校以书面形式作出。不断引发教育行政纠纷的高校学生惩戒行为可以说是当前社会关注度极高的教育教学管理行为。本文通过辨析高校学生惩戒一般性理论,辨清高校学生惩戒所具有的明显的公法属性,再针对目前我国高校学生惩戒进行和之后权利救济中存在的问题提出相应对策。 高校学生惩戒从本质上来说是高校根据国家教育权以公法基本原则为前提在高等教育领域内对在学学生进行的一项特定活动,高校的学生惩戒权来自于国家法律授权,其教育惩戒行为也必须在法律规定的范围内进行。.但是现行教育法规在立法体例上存在实体法律规范内容笼统抽象、原则规范多,程序规范缺失、实际操作性差的问题。导致在高校学生惩戒的实际运行中高校依据内部管理规定乱用、滥用惩戒,违法惩戒频发,与此同时与之相对应的受惩戒学生的权利救济机制也因为法律规范的模糊性而沦为摆设,难以发挥保护学生正当权益的作用。无论是校内申诉还是教育系统内的申诉、复议,抑或者教育系统外的诉讼,都存在法律规范缺失,监管机制的落后以及救济机制失灵等方面的问题。 针对目前高校学生惩戒和权利救济整个过程中存在的缺陷,笔者认为,在目前高等教育立法停滞、高校学生惩戒缺乏高位法具体规制的前提下,充分发挥高校章程在高校内部管理规定中的“母法”地位,在法律、法规的原则性概括表达下以章程为先导,发挥其相较于法律更为灵活、更易操作的优势。在章程中对高校学生惩戒充分贯彻公法法治原则、民主原则、比例原则、人权保障原则以及正当法律程序,张扬以人为本的教育理念,高校在各自章程的引导下制定科学详细的具体管理规定和程序设计,开展统一而又不失特色的教学管理实践活动,以此作为教育法规制定、修改的前期准备。最后,通过完善校内申诉与教育系统内的行政申诉,普遍建立惩戒学生听证制度,保证学生违法违纪能够得到公正处理,切实保障学生正当权益。
[Abstract]:The disciplinary behavior of college students means that in order to achieve the goal of education or management, colleges and universities, in accordance with national legislation and the statutes of colleges and universities, Punitive or reprehensible measures imposed on students who violate certain obligations or fail to meet the prescribed requirements, which must be made in writing by the university. The disciplinary behavior of college students, which leads to educational administrative disputes, can be said to be a highly concerned educational and teaching management behavior. Based on the analysis of the general theory of college student discipline, this paper distinguishes the obvious public law attribute of university student discipline, and then puts forward corresponding countermeasures against the problems existing in the right relief of university student discipline and the right relief. In essence, the discipline of college students is a special activity in the field of higher education, which is based on the basic principles of public law in the national right of education, and the right to discipline of students in colleges and universities comes from the authorization of the state law. Their educational discipline must also be carried out within the limits of the law. However, there are some problems in the current educational laws and regulations, such as the general and abstract content of the substantive legal norms, the many rules of principle, the lack of procedural norms and the poor operation of the substantive laws and regulations. Leading to the actual operation of student discipline in colleges and universities in accordance with internal management regulations, abuse of discipline, frequent punishment, At the same time, the corresponding right relief mechanism of disciplined students is degenerated into furnishings because of the fuzziness of legal norms, and it is difficult to play the role of protecting the legitimate rights and interests of students. Whether it is the appeal in the school or the appeal, reconsideration, suppression or litigation outside the education system, there are some problems such as the lack of legal norms, the backwardness of the supervision mechanism and the failure of the relief mechanism. In view of the defects existing in the whole process of college students' discipline and right relief, the author thinks that under the premise of the stagnation of higher education legislation and the lack of specific regulation of high level law, To give full play to the status of "mother law" in the regulation of internal management of colleges and universities, to give full play to its advantages of being more flexible and easier to operate under the general expression of principles of laws and regulations, and to give play to its advantages of being more flexible and easier to operate than the law. The principles of public law, democracy, proportion, human rights protection and due process should be fully implemented in the discipline of college students. Under the guidance of their respective articles of association, colleges and universities draw up scientific and detailed management regulations and program designs, and carry out unified and undistinguished practical activities of teaching management, which is regarded as the preliminary preparation for the formulation and revision of educational laws and regulations. Finally, through perfecting the appeal in the school and the administrative appeal in the education system, the hearing system of disciplinary students should be established generally, so as to ensure that the students who break the law and violate discipline can be dealt with fairly, and the legitimate rights and interests of the students can be effectively protected.
【学位授予单位】：华东师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.16;D922.11
本文编号：2251176
[Abstract]:The disciplinary behavior of college students means that in order to achieve the goal of education or management, colleges and universities, in accordance with national legislation and the statutes of colleges and universities, Punitive or reprehensible measures imposed on students who violate certain obligations or fail to meet the prescribed requirements, which must be made in writing by the university. The disciplinary behavior of college students, which leads to educational administrative disputes, can be said to be a highly concerned educational and teaching management behavior. Based on the analysis of the general theory of college student discipline, this paper distinguishes the obvious public law attribute of university student discipline, and then puts forward corresponding countermeasures against the problems existing in the right relief of university student discipline and the right relief. In essence, the discipline of college students is a special activity in the field of higher education, which is based on the basic principles of public law in the national right of education, and the right to discipline of students in colleges and universities comes from the authorization of the state law. Their educational discipline must also be carried out within the limits of the law. However, there are some problems in the current educational laws and regulations, such as the general and abstract content of the substantive legal norms, the many rules of principle, the lack of procedural norms and the poor operation of the substantive laws and regulations. Leading to the actual operation of student discipline in colleges and universities in accordance with internal management regulations, abuse of discipline, frequent punishment, At the same time, the corresponding right relief mechanism of disciplined students is degenerated into furnishings because of the fuzziness of legal norms, and it is difficult to play the role of protecting the legitimate rights and interests of students. Whether it is the appeal in the school or the appeal, reconsideration, suppression or litigation outside the education system, there are some problems such as the lack of legal norms, the backwardness of the supervision mechanism and the failure of the relief mechanism. In view of the defects existing in the whole process of college students' discipline and right relief, the author thinks that under the premise of the stagnation of higher education legislation and the lack of specific regulation of high level law, To give full play to the status of "mother law" in the regulation of internal management of colleges and universities, to give full play to its advantages of being more flexible and easier to operate under the general expression of principles of laws and regulations, and to give play to its advantages of being more flexible and easier to operate than the law. The principles of public law, democracy, proportion, human rights protection and due process should be fully implemented in the discipline of college students. Under the guidance of their respective articles of association, colleges and universities draw up scientific and detailed management regulations and program designs, and carry out unified and undistinguished practical activities of teaching management, which is regarded as the preliminary preparation for the formulation and revision of educational laws and regulations. Finally, through perfecting the appeal in the school and the administrative appeal in the education system, the hearing system of disciplinary students should be established generally, so as to ensure that the students who break the law and violate discipline can be dealt with fairly, and the legitimate rights and interests of the students can be effectively protected.
【学位授予单位】：华东师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.16;D922.11
【参考文献】
相关期刊论文 前10条
1 王景斌,唐吉庚;依法治校论要[J];东北师大学报;2000年02期
2 王景斌;朱翠兰;;论教育行政法律关系及相对人权利救济[J];东北师大学报;2005年06期
3 姜明安;行政法基本原则新探[J];湖南社会科学;2005年02期
4 ;田永诉北京科技大学拒绝颁发毕业证、学位证行政诉讼案[J];中华人民共和国最高人民法院公报;1999年04期
5 程雁雷;;司法介入高校学生管理纠纷范围的界定[J];公法研究;2006年00期
6 尹力;黄传慧;;高校学生申诉制度存在的问题与解决对策[J];高教探索;2006年03期
7 郭为禄;试论高等教育契约关系与教育消费选择权[J];华东师范大学学报(哲学社会科学版);2005年03期
8 姜国平;;学生惩戒自由裁量权的伦理制约机制[J];教育与现代化;2009年03期
9 王建华;高等学校属于第三部门[J];教育研究;2003年10期
10 黄欣;;我国《学校教育法》制订的现状与展望[J];华东师范大学学报(教育科学版);2012年03期
，本文编号：2251176
本文链接：https://www.wllwen.com/falvlunwen/xingzhengfalunwen/2251176.html
