论司法对高校惩戒学生行为的合理审查

On Reasonable Judicial Review of Punishment Inflicted by Universities on Students

在我国走向法治的背景下,高校治理中的法律问题逐渐凸现,特别是对高校惩戒学生行为的司法审查问题成为我们必须关注的重要课题。在处理好"特别权力关系"理论与高校治理关系、"大学自治"与司法权关系的前提下,应建立起有效的司法监督机制,以保障学生免受高校惩戒行为的侵害;在综合考虑高校惩戒行为的主体、权力的属性、事务的性质等诸种因素的基础上,应在民事诉讼和行政诉讼之间选择合理的司法介入方式。

In the background of realizing the rule of law in China, the legal problems in university governance have been gradually obvious, especially the problem of judicial review of punishment inflicted by universities on students. Under the premise of properly dealing with the relationship between the theory of special power relationship and university governance and the relationship between university autonomy and judicial power, we should establish an effective mechanism of judicial supervision to protect the students from harming by the punishment inflicted by universities. Based on the comprehensive consideration of several factors including the subject of punishment, the nature of power and the character of punishment, we should choose a reasonable mode of judicial intervention between civil litigation and administrative litigation.