高校管理权权源及其管理行为可诉性——基于学校与学生之间教育行政法律纠纷的分析

Source of Rights to Students Administration and the Justiciability of Administrative Behaviors on the Basis of the Administrative Legal Disputes between Higher Education Institutions and Students

校生纠纷的司法障碍源于管理权权源界定模糊以及"特别权力关系"理论的影响。高校学生管理权本质上是一种公权力,权源为国家法律法规授权和社会公权力组织的自治权。部分法院和学界坚持"学生管理行为属于内部行政行为,是不可诉的"这一结论,偏执于内外行政行为的划分标准,受困于"特别权力关系理论",实际上,没有证据表明我国的行政立法是以"特别权力关系"理论来设计的,也不应该引入这一过时的理论,界定公立高校管理行为的可诉性最终要归结到论证行政法律关系这一核心问题。

The legal disputes between higher education institutions and students can not be acceptance of case because of the vague definition of source of rights to students administration along with the effects of the theory of special power relations. The right to students administration at the public college is a public authority by nature, the source of which derives from state laws and mediations, and the autonomous power of the organization with social public authority. Some courts and academics adhere to the conclusion that the behaviors of students administration belong to inner administrative behaviors and surpass litigation. Due to the bigotry of the division between the standards of inner and outer administrative behaviors, subject to the theory of special power relations, as a matter of fact, there is no evidence indicating that the administrative legislation in ＂our country is designed in accordance with the theory of special power relations, which should not be introduced as it is out- of-date. In the final analysis, the definition of the justiciability of administrative behaviors at higher education institutions concerns the core problem of the argumentation of administrative law relations.