论保障受教育权的政府教育义务构造——从解决义务教育“入学难”问题切入

On the Governmental Educational Obligation Construction of Guaranteeing the Right to Education——From the Start of Solving the “Difficulty to Go to School” Problem of the Compulsory Education

义务教育是要求政府即刻保障实现的最低核心教育义务。目前,在我国义务教育高入学率的背后悄然形成了一种新型"入学难"现象,可概括为受教育资源限制的客观"入学难"和受教育管控的主观"入学难"两种基本类型。"入学难"的实质是受教育权的保障问题,即忽略受教育条件权造成了客观"入学难",限制受教育自由权造成了主观"入学难"。受教育权的实现依赖于政府教育义务的切实履行,因此,解决义务教育"入学难"问题,政府应适当履行教育给付义务、尊重义务和保护义务。也就是说,各级政府既要积极提供教育资源以保障受教育条件权,以消极方式尊重受教育自由权使之免受不正当干涉,还要严厉打击各教学单位、其他社会组织及个人的教育侵权行为,创造公平、有序的入学秩序。

The compulsory education is the lowest core educa tional obligation asking the governments to guarantee and realize it immediately.At present,behind the high entrance rate to school of our country's compulsory education,it quietly forms a kind of new-type 'Difficulty to Go to School' phenomenon that can be summarized into two kinds of basic types namely the objective 'Difficulty to Go to School' of the educational resource limitation as well as the subjective'Difficulty to Go to School' of the educational management and control.The essence of the 'Difficulty to Go to School'is the right to education guarantee problem,that is to say,ignoring the right to the educational conditions causes the objective 'Difficulty to Go to School' and restricting the right to the education freedom causes the subjective 'Difficulty to Go to School'.The realization of the right to education depends on the practical fulfillment of the governmental educational obligation.Therefore,to solve the 'Difficulty to Go to School' problem of the compulsory education,the governments should properly fulfill the educational payment obligation,the respect obligation and protection obligation.In other words,the governments at all levels not only actively offer the educational resource to guarantee the right to the educational conditions and respect the right to the educational freedom in a negative way to free it from the improper interference,but also still severely hit the educational tort behavior from each teaching unit,other social organizations as well as individuals, and create a fair and well-organized entrance order.