教师法修改应明示:体罚适用治安处罚

An Amendment to the Teachers Law:The Applicability of Penalties for Public Security to the Corporal Punishment

2021年媒体报道的教师体罚学生事件呈现出地域广泛、年龄低幼、手段多样、诱因细微、伤害较重、处理封闭等特点。体罚禁而不止在法律上的原因有:立法赋予了教师“首次体罚免责权”和“体罚”权,司法实践中构成犯罪但未致死亡的案件的67%未判实刑。针对教师体罚学生,出现了“同案不同判”现象。法院判决教师体罚学生不适用治安处罚侵犯了全国人大常委会的职权。予以治安处罚是制度共识,也有《未成年人保护法》上的依据。韩小会案的一审法院认为:职务行为是否受治安处罚需要特别指引;掏空了《治安管理处罚法》关于单位违法治安管理行为的规定,属于适用法律错误。公办中小学教师成为“国家公职人员”后,为消除分歧,《教师法》应明确规定,教师体罚学生适用治安处罚。

In 2021,the incidents of corporal punishment of students by teachers reported by the media are characterized by a wide range of areas,young age,diversified means,subtle incentives,severe injury and internal responsibility.The reasons why corporal punishment is prohibited by law but exists in practice are these:the legislation grants teachers the right of“first corporal punishment immunity”and the right of“beating”,and 67%of cases that constitute crimes but do not cause death in judicial practice have not been sentenced to actual punishment.In view of teachers’corporal punishment of students,there is a phenomenon of“different sentences in the same case”.The courts’ruling that the Regulations of the PRC on Administrative Penalties for Public Security is not applicable to the corporal punishment of students by teachers infringes upon the authority of the NPC Standing Committee.It is the institutional consensus to impose Penalties for Public Security on this,and it is also based on the Law on the Protection of Minors.In the case of Han Xiaohui,the court of first instance held that whether or not the act of duty is subject to public security punishment requires special guidelines,hollowing out the provisions of the Public Security Administration Punishment Law on unit violations of public security administration,which is an error in the application of law.After public primary and secondary school teachers became"employees of public institutions",in order to eliminate differences,the Teachers'Law should clearly stipulate that teachers'corporal punishment of students is subject to public security punishment.