论大学自主与国家监督

University Autonomy and Government Supervision

大学自主的疆域就是国家权力运行的边界,大学自主权发挥作用的地方,也就是国家权力理应缺席之处。大学自主并不是对国家监督的全盘排除,但面对一个自律的自治主体,国家监督的范围、方式和强度均应受到不同程度的抑制。立法权可以设立学术活动必须遵守的"国家标准",不过,国家法律所设定的标准是仅具统一性要求的"最低规范条件",各大学有权依自己的学术传统和办学理念做出更为严格的学术要求。从应然层面而言,国家行政和大学自治行政之间是指导关系而非领导关系。从实然的角度讲,我国内地大学处于自主资源不足和自律能力不张的双重困境中,这就给外力的介入提供了正当性基础和合法性回旋余地。同时,对大学自主权的有限司法审查也应理性进行,并遵循利益衡量原则、比例原则和正当法律程序原则。

University autonomy has its own ＂territory＂, which is the boundary of state power. That is to say, it＇s a special ＂place＂ where university autonomy plays its own part while national power is absent. Although university autonomy doesn’t mean the complete denial and exclusion of government supervision, yet any forms of supervision should be restrained to various degrees when it comes to the interference with the affairs of a self-help, self-responsible and self-discipline entity. The legislative power might set the ＂state standard＂ for academic activities to obey, whereas, the standards set by the national legislation is the ＂minimum standard condition＂ which only has some bottom-line requirements. Different universities or colleges should use their own autonomous rights to formulate more severe academic requirements according to their own academic tradition and philosophy and goals. On the idealistic level of the institution, the relationship between municipality and state should not be based on something related to the administrative relation in an organizational system but on the guidance between two different entities. Also from the angle of legal institution, mainland universities are in a double dilemma of incapacity of configuring industrial resources and insufficiency of self-discipline. This provides the legal basis and rooms for the interference of external forces. Meanwhile, along the way, the judicial review for university autonomy should be rational and follow the principle of interests measuring and balancing, proportionality and due process.