论高校与学生行政纠纷的司法解决

On the Judicial Resolution to the Administrative Disputes between Universities and Students

高校与学生间的行政纠纷通过诉讼渠道得以化解,有赖于一套成熟、可行的司法审查机制的确立。在司法审查介入的范围上,应定位于高校行使公权力对学生宪法权益造成或足以造成重大损害或者改变或足以改变学生身份的事项;在介入时机方面,坚持行政救济优先但又不拘泥、僵化于行政救济的前置程序,对专业性较低的非学术性纠纷司法可以直接介入;在司法审查展开环节,以比例原则、利益衡量原则作为指导;在审查强度上,确立以法律审查和程序审查为主,以事实审查和实体审查为辅的综合标准,同时对校规进行附带性审查;考虑到纠纷的特殊性,对此类行政纠纷的裁判形式的选择,应立足于维护权利人的合法权益,同时也要关照大学自治的空间。

That the Administrative Disputes between colleges and students would be resolved by litigation channels depends on a series of mature and feasible judicial review mechanism to be established. In the scope of judicial review intervention, the issues that colleges and universities exercising public authority bring about serious damage on the constitutional rights of students or change the identity of the students should be orientated. On the occasion of intervention, the priority of administrative relief should he in- sisted on, but pre--procedure should not he rigidly adhered to, and judicature shall be intervened directly in the non--academic disputes with lower profession. In the segment of judicial review, the principle of review such as proportion and interest measurement shall be stuck to. In the intensity of the review , the comprehensive standard that the reviews on statute and procedure are given first place and on facts and entities are supplemented shall be established and subsidiary review on regulations shall be carried out at the same time. Considering the special nature of the dispute, the choice formed by the judgement on such administrative disputes should be based on safeguarding the legitimate rights and interests of the very person and reflectingt the self--governing space in the universities at the same time.