义务教育学校教师聘任制的制度反思及其重构

Reflection and Reconstruction of the Teacher Employment System in Schools for Compulsory Education

现行义务教育学校教师聘任制存在着制度困境:从制度根本运行机制来看,其所依赖的市场机制不能满足义务教育公共性的要求;从制度具体设计来看,其已丧失了法理依据,同时缺乏对我国教育现实基础的考量。重构教师聘任制,应肯定其合理内核,坚持该制度,并以教师职业的性质作为根本出发点。重新设计教师聘任制,应以政府作为教师聘任的主体;聘任合同应具有行政合同的特征;应以教师人事争议仲裁作为教师聘任纠纷的主要解决机制。

There are institutional predicaments in the present teacher employment system in schools for compulsory education. On the one hand,in terms of its fundamental operational mechanism,the mechanism of market on which it relies can not satisfy what the publicness of compulsory education demands. On the other hand,in terms of its content,it has not only lost the jurisprudential basis,but also ignored the status quo of compulsory education and teachers in China. To reconstruct the teacher employment system ,we should insist it in the light of its reasonable elements and base on the property of the teaching profession. Furthermore ,there are three points in the redesign of the teacher employment system. Firstly,government should be taken as the employer of teachers. Secondly,the employment contract is characteristic of a administrative contract. Thirdly,the special personnel dispute arbitration for teachers should be the main legal resolution to disputes in the teacher employment.