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【摘要】:在我国的法治化建设进程中,高教领域的法治化已成为一种必然的趋势,但近年来以“田永案”、“刘燕文案”为代表的公立高校屡屡被学生推上法院被告席的案件却日渐增多,在这些案件背后所隐藏的,是一系列的法律问题。本文认为我们可以借鉴国外的一些理论和实践经验,把我国高校重新定位为公务法人,将高校与学生的法律关系界定为具有特别权力关因素的行政法律关系,但其并非不可诉,只是必须把握好司法审查的范围与方式。
【关键词】:高校,公务法人,特别权力关系,司法审查
Abstract: In the process of nomocracy construction of China, it has been an inevitable trend to construct nomocracy in the field of higher education. Meanwhile, in recent years, the cases that public higher education institutions are repeatedly sued by students are gradually increasing with "Tian Yong Case" and "Liu Yanwen Case" as typical representatives. What's behind these cases is a series of legal problems. In this paper, the author wishes to suggest that we use some foreign theories and practical experience for reference, redefine higher education institutions as Legal Entity/Person of Public Affairs, and describe the legal relationship between higher education institutions ans students as administrative legal relationship with Special Power Relation factors. It doesn't mean it cannot be sued. It actually means that we should get fully hold of the range and method of Judicial Review.
Key Words:
Higher Education Institutions,
Legal Entity/Person of Public Affairs,
Special Power Relation,
Judicial Review
http://journal.chinalawinfo.com/Article_Info.asp?Id=80117关于法制化建设的出处
http://www.fabiao.net/thread-511848-1-1.html关于特别权力关系的出处
…… In English translation……
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[Abstract]: the rule of law in our country in the process of building, the rule of law in the field of higher education has become an inevitable trend, but in recent years "TIAN Yong", "Liuyanwen case" for the representatives of students in public colleges and universities has repeatedly been pushed Court dock on the increase in the number of cases but, in these cases often hidden, is a series of legal issues. In this paper, that we can learn from foreign experience in the theory and practice some of the Chinese Universities to reposition for official corporate, university and students defined as the legal relationship has a special power factors of administrative law, but it is not its appeal, but must a good grasp of the scope of judicial review and methods.
Key words: colleges, public legal persons, with special powers, judicial review
In our country of the rule of law in the process, the rule of law in the field of higher education has become an inevitable trend, but in recent years "TIAN Yong", "Liuyanwen case" for the representatives of students in public colleges and universities has repeatedly been pushed Court dock The increase in the number of cases but, in these cases often hidden, is a series of legal issues. In this paper, that we can learn from foreign experience in the theory and practice some of the Chinese Universities to reposition for official corporate, university and students defined as the legal relationship has a special power factors of administrative law, but it is not its appeal, but must a good grasp of the scope of judicial review and methods.
【Summary 】:In the rule of law of the our country turn the construction progress, it is high to teach the rule of law of the realm how to turn to have become a kind of inevitable trend, but take"farmland always case","the document of Liu 燕 " as to represent in recent years of the public and high school is repeatedly pushed case of go to court the accused seat by student increase gradually, at what these case backs conceal is a series of law problem.This text thinks we can draw lessons from some theorieses of the abroad and practice experience, our country the high school relocate for the official business legal person, definitioning the law relation between high school and student as the administration law relation of have the special power pass factor, but it can't tell not, just have to hold the scope and the way of the very judicial reviewing.
【Keyword 】:High school, the official business legal person, special power relation, the judicatory investigate
In the rule of law of our country turn the construction progress, it is high to teach the rule of law of realm how to turn to have become a kind of inevitable trend, but take"farmland always case", "the document of Liu 燕 " as to represent in recent years of the public and high school be repeatedly pushed case of going to court the accused seat by the student increase gradually, at what these case backs conceal is a series of law problem.This text thinks we can draw lessons from some orieses and fulfillment experience of abroad, our country the high school relocate for the official business legal person, definitioning the law relation between high school and student for have a special power pass a factor of administration law relation, but it can't tell not, just have to hold the scope and the way of very judicial reviewing.
In the rule of law of our country turn the construction the progress, the rule of law of Gao Jiao's realm turn to have become a kind of inevitable of trend, but public Gao Xiao4, who take"farmland always case", "Liu2 Yan 's document" as representative in recent years, be repeatedly pushed the case of go to court the accused seat by the student gradual increase, at these what case back conceal, is a series of law problem.This text think us and can draw lessons from abroad of some ories and practice experience, our country Gao Xiao4 relocate for the official business legal person, the law relation between Gao Xiao4 and student define for have special power pass factor of administration law relation, but it don't can't tell, just have to confidence scope and way that like judicatory's reviewing.
【Keyword 】:Gao Xiao4, official business legal person, special power relation, judicatory reviewing