组织法视角下公立高等学校法律地位再思考

Review on the Legal Status of Higher Education Institutions:an Organizational Law Perspective

由于高校组织法地位缺失,通过行政诉讼制度倒逼高校主体地位的确立已成事实。由于公立高校由政府举办,提供高等教育属于履行行政任务,其法律地位存在公营造物与公法人的争议。从我国实际来看,公法人制度更能确保高等学校的自主性、专业性与有责任,且符合公益二类事业单位改革下管办分离的现实要求。确立公法人制度后,可创设行政机关与公法主体间新的联结关系来调和民主正当性,通过转化政府规制与提升内部治理确保该制度得以实现。

Due to the lack of organizational law status of universities,it has become a fact to force the establishment of the status of universities through the administrative litigation,which also causes the controversy of the universities.Higher education was provided from the society to the state,the forms of university also range from social organizations to government affiliated organizations,even to independent public jurists.higher education provided by private universities is a public task.higher education provided by public universities is an administrative task.the legal status of public universities is disputed between the government subsidiary to official legal person.official legal person is the guarantee for the autonomy of public universities,and the democratic legitimacy can be reconciled by adjusting the relationship between the administrative organs and universities,it can be realized through transforming government regulation and improving internal governance.