义务教育阶段校园体罚的侵权责任研究

发布时间：2018-03-04 23:28

本文选题：体罚　切入点：侵权　出处：《吉林大学》2016年硕士论文　论文类型：学位论文

【摘要】：学校本该是培育人才、高尚圣洁的地方,但是近年来我国校园体罚类事件却屡禁不止,甚至呈现出递增的势头,这已经引起了全社会的普遍关注。我国目前呈现少子化的趋势,孩子被几代人视为掌上明珠,但体罚事件却使学生的人格权被肆意践踏,部分学生甚至因此丧失了幼小的生命,让家长痛不欲生,同时造成了家长和学校、教师之间的激烈冲突,影响教学秩序,给社会带来了许多的不和谐因素。体罚侵权问题具有特殊性、复杂性。因校园体罚的行为主体为被誉为“人类灵魂工程师”的教师、发生地点在学校内、被侵权的对象又为未成年的学生,这几方面均具有着特殊性。教师和学生之间的地位也显然不对等,学生年龄也较小,在校失去了家长的监护,很难自我保护。所以,司法部门适用《侵权责任法》解决体罚问题时总会遇到诸多的困惑,难以形成让学校、教师、家长同时满意的判决,司法审判工作也承担了巨大的压力。为了减少屡禁不止的体罚事件,保护学生的人格权,同时也便于司法机关、教育部门处理体罚侵权类案件,本文尝试从《侵权责任法》的角度来研究,分别适用了语义分析方法探究了体罚的概念、体罚与惩戒的区别;运用比较研究法,详细论述了各类型法律关系、各种归责原则的利弊;通过案例分析法,揭露了学生人格权被侵犯的实际情况;通过文献分析法,了解了目前体罚研究的不足,也为本文获取了足够的理论来源。首先,本文弄清了中小学与学生之间的法律关系、法律关系与侵权责任之间的关系等这些前提性问题,为下文的侵权问题研究做好了铺垫。此部分得出的结论是适用不同的法律关系学说会产生不同的法律责任,中小学校与学生之间的法律关系应为教育法律关系,只有适用此种法律关系才可与本文的侵权责任联系到一起,其他的法律关系均存在着种种缺陷。其次,论文论述了体罚侵权的构成要件与归责原则等问题,详细地论述了何种行为是体罚行为、体罚与合理惩戒的区别、被侵犯的人格权以及适用何种归责原则去解决纠纷才对当事人更为公平等问题。本文经过分析后认为,体罚行为表现为学校的不作为性质的行为与教师的作为性质的行为,过错责任原则与过错推定原则是最适合的归责原则,公平原则与无过错原则均有着显著的缺陷。体罚行为主要侵犯学生的一般人格权和具体人格权,体罚与惩戒在主、客观方面均有所区别。最后,论文举例分析了侵权责任类型、责任承担主体、赔偿范围以及何种情况下存在责任减免等问题。本文经分析后,得出的结论是侵权责任的具体类型有三类、赔偿范围应包括人身与精神损害赔偿部分、应当由学校充当被告并先行承担侵权责任,但学校事后对教师享有追偿权。
[Abstract]:Schools are supposed to be places where talents are cultivated and noble and holy, but in recent years, corporal punishment incidents in Chinese schools have been repeatedly prohibited, even showing an increasing trend, which has aroused the general concern of the whole society. At present, there is a trend of minority children in our country. Children are regarded by generations as the apple of their eye, but the incident of corporal punishment has wantonly trampled on students' personality rights. Some students have even lost their young lives as a result, making parents miserable and creating parents and schools at the same time. The fierce conflict between teachers affects the teaching order and brings many disharmonious factors to the society. The infringement of corporal punishment is special and complicated. Because the main body of corporal punishment in campus is the teacher who is known as "the engineer of human soul". The place of occurrence is in the school, and the object of infringement is also the minor student. These aspects have their particularity. The status between teachers and students is obviously not equal, the students are also younger, and they lose parental supervision at school. It is difficult to protect oneself. Therefore, when the judiciary applies the Tort liability Law to solve the problem of corporal punishment, it will always encounter a lot of confusion, and it will be difficult to form a decision that will satisfy schools, teachers and parents at the same time. The judicial work has also borne tremendous pressure. In order to reduce the repeated prohibition of corporal punishment and protect students' personal rights, it is also convenient for the judiciary and the education department to handle cases of corporal punishment infringement. This article tries to study from the angle of Tort liability Law, applies the semantic analysis method to explore the concept of corporal punishment, the difference between corporal punishment and discipline, and discusses in detail various types of legal relations by means of comparative study. The advantages and disadvantages of various principles of imputation; through the case analysis, exposed the actual situation of the violation of students' personality rights; through the literature analysis, understand the shortcomings of the current corporal punishment research, but also for this article to obtain sufficient theoretical sources. This paper clarifies the legal relationship between primary and secondary schools and students, the relationship between legal relations and tort liability, and so on. The conclusion of this part is that the application of different legal relationship theories will result in different legal liability, and the legal relationship between primary and middle schools and students should be educational legal relations. Only the application of this kind of legal relationship can be linked with the tort liability of this article, and the other legal relations have various defects. Secondly, the paper discusses the constitutive elements and the imputation principle of corporal punishment infringement. This paper discusses in detail what kind of behavior is corporal punishment, the difference between corporal punishment and reasonable punishment, the violation of personal right and the principle of imputation to solve the dispute, and so on. The behavior of corporal punishment is the behavior of the nature of omission in schools and the behavior of teachers. The principle of fault liability and the principle of presumption of fault are the most suitable imputation principles. The principle of fairness and the principle of no fault have obvious defects. Corporal punishment mainly infringes students' general personality right and specific personality right, corporal punishment and punishment are different in subjective and objective aspects. Finally, the paper analyzes the types of tort liability with examples. The main body of liability, the scope of compensation and the circumstances under which there are liability relief and other issues. After analysis, the conclusion is that there are three specific types of tort liability, the compensation scope should include personal and mental damage compensation part, The school should act as the defendant and assume the tort liability first, but the school has the right of recourse to the teacher afterwards.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923

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