论教育考试处罚中的考生利益优先原则

On the Principle of Putting Examinees' Interests First When Dealing with Misbehavior in Education Examinations

考生利益优先原则是为避免"无救济有处罚"而提出的教育考试处罚原则,是教育考试处罚过程中应当贯彻的原则之一。其核心要义是,如果仅凭现有依据和证据不足以证明考生违法违规,而放任这类行为又有悖于公平正义精神,为避免造成有处罚却无救济的既成事实,迫不得已采用折中方案。贯彻考生利益优先原则,须限定在行政处罚的一般原则框架之内,须置于法无明确指向的模糊区间,须从规则创制时方便考生的角度出发。在教育考试处罚过程中贯彻考生利益优先原则存在被误用甚至利用以及"理性人"倾向等风险。

As one of the principles that must be followed when handling examinees＇ misbehavior, putting examinees＇ interests first is to avoid penalizing an examinee for his or her misbehavior without offering him or her any relief he or she deserves. The core point is that if the existing legal base and evidence are insufficient to prove that an examinee violates the law, and nevertheless this particular type of act runs contrary to the spirit of fairness and justice, lest that the examinee be penalized without being offered any relief, a compromise plan has to be adopted.The implementation of the principle must be confined within the general framework of administrative penalty, must be placed in a fuzzy range with no clear reference to law, and above all, must proceed from the perspective that the creation of the rules is intended to facilitate examinees during the test-taking process. Nevertheless, it should be cautioned that the implementation of the principle might run the risk of the＂rational person＂tendency, or misuse,or even manipulation, on the part of education examination institutions.