高校学位授予权:本源、性质与司法审查

Colleges' Degree-Conferring Right: Origin, Nature and Judicial Review

当前关于高校学位授予权的本源大概有三种观点即法赋权力、国赋权力和天赋权利,与此论相对应,存在行政权说、高校自主权说和双重性质说三种性质定位。这些观点虽已触及了高校学位授予权的外在属性和实质内容,但还存在定位片面单一或研究视角高度不够的问题。从教育宪法视角探究,学位授予权的最终来源是公民的受教育权和学术自由权,具有为受教育权而设的行政权力和为学术自由权而设的学术权力的双重属性。相应地,司法审查的双轮驱动是:对行政权性质的学位授予权主要进行合法性审查;对学术权力性质的学位授予权则区别对待,对学术评价权应以正当程序原则为主进行审查而予以尊重,对制定学术标准的权力应以合理性原则和比例原则为主进行审查。

There are three viewpoints about the origin of colleges’degree-conferring right at present,which are law-given powers,nation-given powers and God-given rights.Correspondingly,the nature of the right is determined as three kinds,which are administrative power,college autonomy and a combination of the above two.Although these viewpoints touch upon dispositional properties and substance of the colleges’degree-conferring right,there are still some problems that are defined one-sided and the research perspective is limited.From the perspective of educational constitution,the ultimate origin of colleges’degree-conferring right is the civil right to education and academic freedom.The right has a dual property of administrative power setting up for the right to education and academic power setting up for academic freedom.The two engines driving judicial review are:legality review of the right of degree-conferring which is defined administrative;making a distinction to right of degree-conferring which is defined academic,reviewing and respecting the academic power which should be based on the due process principle,reviewing the power of establishing academic standards which should be based on the principle of reasonableness and proportionality.