教育惩戒权的法治理念转向与正当化边界

The Shift of Legal Concept of Educational Disciplinary Authority and Its Justification Boundaries

教育惩戒本质属于矫正学生失范行为的负向干预措施,具有教化、惩戒复合特性。当下教育惩戒适用由滥用、误用转向弃用的式微困境值得反思。但教育惩戒权是教师履行教学职责、塑造学生品行、维护教师权威所必需的手段和法定职权,不可偏废。教育性乃是教师惩戒行为的本质所在,其虽具有否定性评价效果,并不磨灭教育行为属性,与体罚(变相体罚)等单纯惩罚性措施具有明显区别。教育惩戒需建基于正义之上,其合范适用应兼顾学生合法权益维护与教学秩序维护,是遵循法令、合规业务的正当性行为、符合“教育习惯”的社会相当性行为。教育惩戒权发展沿革是基于“家庭亲权”向“国家亲权”的转向,应合理规范教育惩戒的权属主体、惩戒对象,以利益衡量原则作为惩戒措施适用合理性的把控,注重教育惩戒实效与失范学生权益冲突的权衡。可改变偏重暂时性疼痛惩戒的传统模式,发挥学业性、纪律性惩戒措施的补充作用。在保障教师群体专业权利能动发挥的基础上,为教育惩戒的具化运用设立规范边界。

The essence of educational punishment belongs to the negative intervention measures aimed at correcting students’misbehavior,embodying a composite characteristics of both education and punishment.The current shift in the application of educational punishment from abuse and misuse to abandonment is worthy of reflection.However,the power of imposing educational punishment is a necessary means and legal authority for teachers to fulfill their teaching duties,shape students’conduct,and maintain teachers’authority;it cannot be neglected.Education is intrinsic to teachers’disciplinary actions.Despite its negative evaluation effect,it does not erase the attribute of educational behavior,and is obviously different from purely punitive measures such as corporal punishment(or disguised corporal punishment).Educational punishment should be built on the basis of justice,and its normative application should take into account the maintenance of students’legitimate rights and the maintenance of teaching order,which is a legitimate behavior in compliance with laws and regulations and a social equivalent behavior in line with“educational practices”.The evolution of educational punishment authority is based on the shift from“parental authority”to“state authority”.It is necessary to reasonably regulate the stakeholders and subjects of educational punishment,take the principle of interest measurement as the control of the rationality of the application of disciplinary measures,and emphasize the balance between the effect of educational punishment and the conflict of rights of the deviant students.It is suggested to change the traditional mode of temporary pain punishment,and play the complementary role of academic and disciplinary punishment measures.On the basis of guaranteeing the active play of teachers’professional rights,the normative boundaries should be set up for the formal application of educational punishments.