“双非儿童”受教育权保障问题研究

A Study on the Protection of the Right to Education of the“Double Non”Children

2001年香港特区终审法院经"庄丰源"案裁定夫妻双方均不是香港永久性居民的子女("双非"婴儿),可因其出生于香港特区境内而直接获得永久性居民身份。此案裁决生效后,大批内地夫妇赴港产子,导致"双非儿童"人数激增。如今,"双非儿童"因户籍、学籍壁垒无法入读内地公办学校,只能选择为数不多且费用高昂的内地民办学校;抑或耗费较多时间、金钱成本赴港就读。"双非儿童"身为中华人民共和国公民,理应享有宪法、法律所确认的受教育权,国家亦负有保障"双非儿童"平等受教育权的义务。可行性对策是完善与"双非儿童"受教育权相关的法律法规,实现香港特区政府与"双非儿童"居住地政府的教育资金转移支付,加强司法救济。这是保障我国公民受教育权的应因之策,也是维护基本法权威和实践"一国两制"的智慧之道。

The problem of ＂double non＂ derives from the decision of Chong Fung Yuen case（ 2001 ）.In this case, Hong Kong Court of Final Appeal ruled that＂ double non＂ children whose parents were Chinese main- land residents could obtain the rights of abode of the HKSAR and become permanent residents of Hong Kong. After the case came into force, a large number of mainland couples had children in Hong Kong, resulting in a ＂double non＂ surge in the number. Because of the household registrationand school registrationbarriers, the ＂double non＂ children can not enter the public schools today.They can only choose one of the few and expen- sive private schools in China's Mainland, or spend more time and more money going to Hong Kong to study. As the citizens of the People＇s Republic of China, ＂double non＂ childrenshould enjoy the right to education which is recognized by the Constitution and the law. The government also has the obligation to guarantee the right to education for＂ double non＂ children. In the interests of the＂ double non＂ children, we can revise the relevantlaws and regulations, transfer education funds from Hong Kong Special Administrative Region （HKSAR） govern- ment to local authorities in China's Mainland which the＂ double non＂ children live in and improve the judicial re- liefsystem.It is conducive not only to guaranteeing citizens＇ right of education, but also to preserving the author- ity of the Hong Kong Basic Law and to practising＂ one country, two system＂.