中小学教育惩戒的可诉性探析

An Analysis of the Actionability of Educational Discipline in Primary and Secondary Schools

  • 摘要: 在“重要性理论”的检视下,“停课停学、转入专门学校教育矫治、勒令退学和开除学籍”四项教育惩戒举措可能减损学生的受教育基本权利,具有诉的利益。然而,针对中小学教育惩戒提起行政诉讼,在起诉阶段面临主体资格缺失、受案范围模糊和责任能力不足的三重障碍。破解中小学教育惩戒可诉性的三重障碍,一是通过部门规章授予中小学行政主体资格;二是运用“目的性的扩张”方法,扩充《行政诉讼法》第12条第12项受案范围,将受教育权纳入其中;三是将可诉事项限于侵犯受教育权的教育惩戒举措上。

     

    Abstract: In the perspective of "importance theory", the four educational disciplines of suspension of school, transfer to specialized school for correction, order to withdraw from school and expulsion from school may detract from the basic education rights of students and are actionable. However, the administrative litigation against the educational disciplines in primary and secondary schools faces triple obstacles in the prosecution stage: lack of subject qualifications, vague scope of accepting cases, and insufficient capacity for responsibility. To break through the triple barriers to the suability of educational punishments in primary and secondary schools, a normative basis need be created for primary and secondary schools to be administrative subjects, the "expansion of purpose" method should be used to expand the scope of case acceptance in Article 12, Item 12 of the Administrative Procedure Law so as to bring the right for education into the scope of accepting cases, and the actionable behavior should be limited to situations that violate the right for education.

     

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