我们离“正当”程序有多远?——《普通高等学校学生管理规定》中有关程序性条款评析

How Far are we from the “Due Process”?——A Critical Evaluation of Procedural Entries in Regulation of Student Management in Regular Higher Education Institutions

真正意义上的正当程序原则包括程序性正当程序和实质性正当程序,两者一个是形式一个是内容,相辅相成,缺一不可。新《普通高等学校学生管理规定》虽然确立了正当程序原则,但由于其在程序性正当程序中,缺乏中立的裁判者和公正的听证程序,在实质性正当程序权利中,没有保证学生享有“沉默权”和反对“自证其罪”的权利,因而新《普通高等学校学生管理规定》离真正意义上的正当程序原则还有相当的距离。

The due process standard is generally interpreted to have both procedural and substantive components： the former is the form and the latter the content; the two are complementary and indispensable. China＇s newly effected Regulation of Student Management in Regular Higher Education Institutions has signed into law the standard of due process. However, it lacks neural arbitrator and fair procedure in hearing of witness under substantive due process, and it fails to protect the students＇ right of self incrimination under due procedural process. Therefore, the new Regulation is still far from the principle of due process.