论高校惩戒学生行为的司法审查

发布时间：2018-07-06 09:37

  本文选题：高等学校 + 惩戒行为　； 参考：《华东师范大学》2014年硕士论文

【摘要】：高校惩戒学生行为是高校运用惩戒权对学生实施的一种责难性措施,高校惩戒权是从属于高校管理权的一项公权力。长期以来,我国高校在学生管理方面占据着主导地位,其充分运用高校管理权为学校治理和学生管理发挥了积极作用。但同时,高校在行使管理权的过程中经常忽视对学生权利的尊重和保护,尤其在高校对学生实施惩戒行为的过程中。一方面,自田勇诉北京科技大学案被法院受理后,学术界对法院能否介入高校管理行为展开了激烈的讨论；另一方面,随着我国高等教育的快速发展,学生状告学校的案件频频发生,这其中因高校惩戒学生行为而引发的诉讼占据相当比例,实务界,法院对此类案件的不同处理方式,对同类案件采用不同审查标准,运用不同审查依据造成类似案件却有不同审判结果,严重影响了法律的稳定性和可预期性。因此,明确高校行政主体地位,厘清高校惩戒学生行为与司法审查的关系,统一高校惩戒学生行为司法审查的受案范围、审查标准和审查依据成为目前急需解决的问题。 本文首先对高校惩戒学生行为司法审查的含义进行分析,厘清高校惩戒权、高校惩戒学生行为、高校惩戒学生行为司法审查三者之间的关系,并阐述了高校惩戒学生行为司法审查与大学自治的关系。其次,在高校惩戒学生行为现有救济制度缺陷的基础上结合国内外理论与实践对高校惩戒学生行为纳入司法审查的必要性和可行性进行理论与实证分析。最后,根据引起惩戒原因的性质不同,将高校惩戒学生行为司法审查区分为基于纪律性和基于学术性两种原因引起的司法审查,并对各类司法审查的受案范围、审查标准和审查依据,在结合国外相关理论和实务的基础上进行比较研究。受案范围上采用重要性标准,仅限于高校惩戒行为对学生受教育权和接受教育完整性造成影响的案件；审查标准上,纪律性惩戒行为采取严格的形式审查和实质审查,而学术性惩戒行为最大限度的尊重学校惩戒决定,只进行适度审查；审查依据上,两种惩戒行为司法审查均依据法律法规,参照规章,但由于高校拥有学术自主权,学术性惩戒行为司法审查不能轻易排除内部规范的适用,而纪律性惩戒行为只需严格依据法律法规即可。
[Abstract]:The behavior of disciplinary students in colleges and universities is a kind of censure measure that colleges and universities carry out to students by using disciplinary power. The disciplinary power of colleges and universities is a public power subordinate to the management power of colleges and universities. For a long time, colleges and universities in China have played a leading role in student management, and their full use of university management power has played an active role in school governance and student management. But at the same time, colleges and universities often ignore the respect and protection of students' rights in the process of exercising their management power, especially in the process of carrying out disciplinary actions against students in colleges and universities. On the one hand, since the case of Tian Yong v. Beijing University of Science and Technology was accepted by the court, the academic circles have launched a heated discussion on whether the court can intervene in the management of colleges and universities; on the other hand, with the rapid development of higher education in China, The cases of students suing the school occur frequently, among which the litigation caused by the disciplinary actions of students in colleges and universities occupies a considerable proportion. In the practical circles, different ways of handling such cases are adopted by the courts, and different censorship standards are adopted for the similar cases. The application of different examination bases leads to different trial results in similar cases, which seriously affects the stability and predictability of the law. Therefore, it is urgent to clarify the status of administrative subject, clarify the relationship between disciplinary students' behavior and judicial review, unify the scope of the judicial review of disciplinary students' behavior in colleges and universities, and examine the standard and basis of the review. Firstly, this paper analyzes the meaning of judicial review of disciplinary behavior of college students, and clarifies the relationship between the right of discipline and the judicial review of behavior of disciplinary students in colleges and universities. And elaborated the university discipline student behavior judicial review and the university autonomy relations. Secondly, the necessity and feasibility of bringing disciplinary behavior into judicial review are analyzed theoretically and empirically on the basis of the defects of the existing remedy system of disciplinary students' behavior in colleges and universities, combined with the theory and practice at home and abroad. Finally, according to the nature of disciplinary reasons, the judicial review of disciplinary behavior of college students is divided into judicial review based on discipline and academic reasons, and the scope of cases of all kinds of judicial review. Based on the relevant theories and practices of foreign countries, the comparative study is carried out on the basis of the standards and the basis of the review. In the scope of accepting a case, the importance standard is adopted, which is limited to the cases in which the disciplinary behavior of a university has an impact on the students' right to receive education and the integrity of the education; on the other hand, the disciplinary conduct is strictly examined in form and in substance. The academic disciplinary behavior should respect the decision of the school discipline to the maximum extent, and only carry on the appropriate examination. On the basis of the examination, the judicial review of the two kinds of disciplinary conduct is based on the laws and regulations, but the academic autonomy of the university is due to the fact that the institution of higher learning has academic autonomy. The judicial review of academic disciplinary behavior can not easily exclude the application of internal norms, but discipline can only be strictly based on laws and regulations.
【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;D925.3
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本文编号：2102360