国家考试报考资格限制条件的公法审视

发布时间：2018-02-03 10:27

本文关键词： 国家考试报名资格限制公民的基本权利合宪性合理性公共利益　出处：《上海师范大学》2017年硕士论文　论文类型：学位论文

【摘要】：考试制度在我国源远流长,上至国家选拔官员,下至理性个人为追求利益而参加资格、水平测试,大大小小的考试似乎随处可见。以国家名义组织和实施的各类考试有上百种之多,如广受人们关注的“高考”、“研究生入学考试”在内的国家教育考试,国家公务员及事业单位招考在内的国家工作人员录用考试,各类职业资格考试如司法考试、注册会计师考试在内的国家资格考试,以及随着英语的普及与就业求职息息相关的英语四六级在内的国家水平考试均包含其中。凡此种种,皆与我国大多人的学习、就业、生存息息相关,更关系到国家及社会对人才的遴选,影响着国家和社会的进步与发展。然而在以上各类国家考试组织与实施的诸多环节中,因报考限制条件而引发的问题逐步引起人们的重视。在现代法治国家,将国家考试报考资格限制设置在符合宪法规定的范围内,对于公民基本权利的维护十分必要。而我国却并没有完善统一的关于考试的立法对此加以规范,国家考试管理机构实施行政行为处于于法无据的状态,更甚者国家考试报考资格限制的设置也比较随意、不合理、无程序。公民因报考资格受限而引发的侵权案件也缺乏有效救济途径。我国学术界对于国家考试中公民基本权利的维护有一定程度的关注,但也仅限定在国家公务员考试以及高考等社会关注度较高的考试上,国家考试中占比较大的其余类型考试则被忽视了。笔者首先从国家考试报考资格限制出现的起源为研究切入点,探讨资格限制出现的原因,在肯定了国家考试报考资格限制这一制度存在的合理性之后,通过查阅资料对我国国家考试报考资格限制现状做出系统梳理,总结归纳出我国国家考试报考资格限制中存在的问题,并从宪法学的角度对其进行合宪性分析,得出国家基于维护公共利益与提高社会效率出发而对公民基本权利做出让步的考试资格限制行为,应当控制在合理的限度内。进而笔者提出应从利益论与效率论角度出发,将国家考试报考资格限制的设置限定在宪法学的合法性、必要性、均衡性原则之下,使公共利益与私利、效率与正当达到一种合理、合法、合宪的平衡。
[Abstract]:The examination system has a long history in our country, up to the national selection of officials, down to rational individuals to pursue interests and participate in qualification, level testing. Examinations, large and small, seem to be everywhere. There are as many as 100 kinds of examinations organized and implemented in the name of the country, such as the national education examinations, such as the "National College entrance examination" and the "Graduate entrance examination", which are widely concerned by people. National civil servants and public institutions, including the recruitment examination of national staff, all kinds of professional qualification examinations such as the judicial examination, the examination of certified public accountants examination of the national qualifications examination. Along with the popularization of English and employment and job hunting, CET-4 and CET-6 are all included. All of these are closely related to the study, employment and survival of most people in China. It is more related to the selection of talents by the country and society, and affects the progress and development of the country and society. However, in the above various national examination organization and implementation of many links. People pay more and more attention to the problems caused by the restricted conditions of registration for examination. In modern countries ruled by law, the national examination qualification limit is set within the scope in accordance with the provisions of the Constitution. It is very necessary to safeguard the basic rights of citizens. However, there is no perfect and unified legislation on examination in our country to regulate this, and the administrative behavior of the national examination administration is in the state of lawless. What's more, the setting of national examination qualification limit is also arbitrary and unreasonable. There is no procedure. The tort cases caused by the limited qualification of citizens are also lack of effective remedies. Our academic circles have a certain degree of concern for the protection of the basic rights of citizens in the national examination. But only in the national civil service examination and college entrance examination and other high social attention on the examination. The other types of examinations, which account for a large part of the national examinations, are ignored. Firstly, the author discusses the reasons for the emergence of the qualification restrictions from the origin of the national examination qualification restrictions. After affirming the rationality of the national examination qualification restriction system, this paper systematically combs the status quo of the national examination qualification limitation through consulting information. This paper summarizes the problems existing in the limitation of national examination qualification, and analyzes its constitutionality from the perspective of constitutional jurisprudence. This paper draws a conclusion that the state makes concessions to the basic rights of citizens on the basis of safeguarding the public interest and improving social efficiency. It should be controlled within a reasonable limit. Then the author puts forward that the setting of national examination qualification limit should be limited to the principle of legality, necessity and balance of constitutional law from the angle of benefit theory and efficiency theory. To achieve a reasonable, legal and constitutional balance between public interest and private interest, efficiency and justice.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D630.3;D922.11

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