高校学位类指导案例的司法逻辑证成

Judicial Logic Certification of Academic Degree Guidance Cases

在高校学位类案件中,司法对高校学位授予的审查权限及范围是最为核心的争议。通过对指导案例38号、39号的"显微镜"式分析可以得出,《学位条例》中关于学位授予要件的立法表述在实践中遵循了一种双层结构司法逻辑,其中职权要件在法条中以列举方式表述,在司法中执行严格审查原则;授权要件在法条中以概括方式表述,在司法中执行形式审查原则。因此,在司法实践中须区分职权要件与授权要件,运用不同的方式审查高校学位授予行为的合法性。

In the academic degree-related cases in domestic colleges and universities, it is the most disputable part for the judiciary ’ s examination on the jurisdiction and scope of the awarding of university degrees. Through the"microscopic" analysis of Guiding Cases No. 38 and No. 39, it can be concluded that the legislative expression on the qualifications of degree in the Degree Regulations follows a two-tiered judicial logic in practice, in which the authority requirements are expressed in lists according to law and the principle of strict examination is enforced in the judiciary. At the same time,the authorization requirements are expressed in generalization according to law and the principle of formal examination is implemented in the process of judicial examination. Therefore, in the judicial practice, it is necessary to distinguish the requirements of the authority and the authorization, and use different methods to examine the legitimacy of the degree-granting in domestic colleges and universities.