我国教育惩戒规则实施的困境及改革路径——以日本教育惩戒制度为参照

Difficulties in the Implementation of Educational Punishment Rules and Reforms in China——Taking Japan’s Educational Punishment System as a Reference

我国的《中小学教育惩戒规则(试行)》已经开始施行,但实施过程中仍然面临着教师"不敢管""不愿管"的困境,需要从制度供给层面加以完善。日本的教育惩戒制度经过了上百年的发展,逐渐形成了以绝对禁止体罚为原则,以立法为基础,以文部科学省和裁判所的指导性案例为补充,以个案判断为具体适用准则的教育惩戒体系。借鉴日本的教育惩戒制度,我国应当进一步完善教育惩戒措施分类,确立教育惩戒实施中的个案判断原则和克制原则,容忍突发情况下教师对有形力量的使用,并构建我国的教育惩戒指导性案例制度。

China’s Elementary and Secondary Education Punishment Rules(Trial)has just started to implement,however,in the process of implementation,teachers still face the dilemma of"dare not manage"and"unwilling to manage",which needs to be improved from the level of system supply.After a hundred years of development,the educational punishment system in Japan has gradually formed an educational punishment system which takes absolutely prohibition of corporal punishment as the principle,legislation as foundation,guiding cases as supplement from the Ministry of Education,Culture,Sports,Science and Technology(MEXT),and the Count,and judgements based on individual case as the concrete applicable criterion.Drawing lessons from Japenese educational punishment system,China should further improve the classification of educational punishment measures,establish the principle of case judgment and restraint in the implementation of educational punishment,tolerate teachers’exercise of tangible power in emergencies,and construct the instructive case system of educational punishment in China.