论高校“办学自主权”的双面法治逻辑及统合

On the Double Sided Rule of Law and Integration of Autonomy in Colleges and Universities

国内对高校“办学自主权”的释义颇多,法学视角而言就存在“国家行政权”与“社团自治权”性质之争,但这类释义过分强调了对立而忽视了统一。本质上两者都是在处理与政府的关系,表现为“外部分权”与“内部治理”的双面逻辑。外部高校基于法律授权而分享教育管理权,能为高校不依附于政府行使权力提供法律保障;内部高校基于学术自由而类似于“私主体”,借鉴私法人格技术,能为高校按照学术逻辑的特色治理架起理论桥梁。而高校章程能成为两者统合的优选通道,但必须明确它的实施途径与违法后果以促进落实。如此,就为高校“办学自主权”提供了一个符合大学逻辑的法学释义,从而优化高校的权力环境、形成特色办学、满足人的全面发展。

In China, there are many interpretations of “autonomy for running a school” in colleges and universities. There is a dispute between the “state administrative power” and “autonomy of autonomy” in the perspective of law, but this kind of interpretation overemphasizes the opposition and neglects the unity. In essence, both of them are dealing with the relationship between government and the government, showing the double logic of “external decentralization” and “internal governance”. The external colleges and universities share the right of education management based on legal authorization, which can provide legal protection for the government to exercise power without attachment to the government. The internal universities pursue the status of “private subject” based on academic freedom and learn from private law personality technology to build a theoretical bridge for colleges and universities in accordance with the characteristics of academic logic. The constitution of universities can become a preferred channel for integration, but it must be clear about its implementation and illegal consequences to promote implementation. Thus, it provides a legal interpretation of the university s “autonomy for running a school”, which is in line with the logic of the university, so as to optimize the power environment of the university, to form a characteristic school and to meet the overall development of the people.