The rules of colleges and universities are the general name of the rules that students must abide by. In the past, it was natural for students to abide by school rules. But if we consider the concept of governing the country according to law, we must give a reason. If we can't do this, we will not pass the legal review and may bear legal responsibility.

In the view of civil law countries and regions, the binding force of college rules on students comes from the binding force of laws on citizens. School rules are the legal source of administrative law, and their binding objects are students at school. The legal status of French universities is that of public jurists, who "can make laws and regulations within the scope of their official duties according to the provisions of laws and the authorization of higher-level laws and regulations". The school rules belong to the regulations formulated by the university. According to French legislative tradition, regulations are the legal source of administrative law, which is as important as laws enacted by parliament. It can be seen that France regards the rules of universities as its legal source. Germany has incorporated university regulations into public law regulations. The norms of public law refer to the legal norms unilaterally issued by independent groups within the country, especially those outside the country, such as towns, township associations, societies, universities, associations, etc., in order to manage things within their autonomous scope (that is, things that do not directly belong to the country) for their members or people. In Taiwan Province Province, China, the school rules of colleges and universities have also been brought into the source of human law. Civil law countries and regions have incorporated school rules into their legal sources, and it is naturally the obligation of students to abide by them.

The school rules of public universities in China also play a legal role in student management. The school rules record the rights and obligations of students, make detailed provisions on the management of student status, and have special chapters to stipulate rewards and punishments for students. Students who violate school rules may be punished by warning, serious warning, demerit, detention, expulsion and so on. In particular, expulsion from school, once applied, will change the identity of students and even change their life trajectory. School rules have no less influence on students than administrative regulations have on ordinary citizens. Students take school rules as the boundary of behavior, schools take school rules as the basis for managing students, and courts review cases based on the effectiveness of school rules. For students, school rules are the laws they face every day.

The rules of public universities should be students' laws. In the legal environment, if school rules are not laws, it is impossible to explain the source of their binding force on students. School rules are unilaterally formulated by universities and implemented by universities, which have coercive power on students and directly affect their constitutional rights-the right to education. If the school rules are not laws, what kind of contract or internal regulations of the organization are qualified to play such a role?

Do university rules belong to the category of civil law? The author also tried to discuss the school rules from this path and turn them into standard contracts, but later found that there are unavoidable problems: for public universities, the legal status between universities and students is unequal, which is particularly obvious in the management of students by universities. Unequal relations do not belong to the scope of civil law adjustment, and school rules are the basis for managing students in colleges and universities. So the rules of public universities are not civil. At this point, we have to admit that university regulations should be legal documents.

Second, the institutional basis for school rules to become a legal source is university autonomy.

Why does the university charter become a legal source, or the theory that universities produce legislative power is a basic problem that must be solved. The answer lies in the university autonomy system constructed by the west.

Autonomy means that the state authorizes people's organizations to manage their internal affairs through laws based on management considerations. Autonomy makes people's organizations have greater independence (often reflected in the status of "public legal person") and enjoy autonomy rights (legislative power, administrative power, personnel power, punishment power, etc.). ), and undertake the task of autonomy. The fundamental feature of autonomy is that people in the group manage internal affairs democratically, or that group members have a decisive influence on group affairs. One of the contents of autonomy is the right of group legislation. Germany refers to the legislation of autonomous organizations as autonomous regulations (some people translate it into public law regulations). "Autonomy regulations are norms formulated by autonomous public law people according to autonomy, and they do not need legal authorization, nor are they for law enforcement. It only applies within the scope of autonomous public law and is recognized and protected by law. " India's "self-made regulations" are formulated by organs democratically elected by public legal persons and have a democratic foundation. With the transfer of members' contractual rights in the sense of autonomy, this partial "social contract" has produced legitimacy and bound social members. University autonomy is a form of autonomy. The law endows universities with the status of legal persons, so university members have the right to manage their internal affairs democratically and get the right to make school rules. The school rules are formulated by all members of the university or the democratically elected congress, which is the law of students and has mandatory force on students.

Although the school rules are permitted by the Constitution and laws and a form of university self-management, they are also subject to some restrictions: First, the object of restraint is only students in universities. Second, abide by the principle of legal reservation, and important matters are still stipulated by laws formulated by the national legislature.

University is the basic unit of a country. The state authorizes university autonomy, and it is impossible to grant all power. The laws of the state are still binding on students, and the administrative power of the state still has an impact on students. However, university autonomy is a way of indirect state governance, and these constraints and influences should be reflected in an indirect way. The solution is to formulate the legal and administrative powers of these countries into school rules in more detail. This part of the content is authorized by laws and regulations or entrusted by the government, which is called transfer type. The power of school rules inheritance depends on the authorization of laws and regulations and the official execution given by the government. It obviously has the characteristics of refinement in the name of school rules, and its execution also comes from the implementation of national laws and the extension of administrative power. In addition, the school rules formulated by universities based on autonomy are completely autonomous, which is the so-called autonomous school rules. The coexistence of autonomous school rules and transfer school rules is a remarkable feature of university school rules.

Third, China has not established a corresponding system to straighten out the legal status of school rules.

Is there university autonomy in China? The article 1l of People's Republic of China (PRC) Higher Education Law has attracted the attention of some scholars, which stipulates that "institutions of higher learning should face the society, run their own schools according to law, and implement democratic management." Some scholars equate "running schools independently according to law and implementing democratic management" with university autonomy in France and Germany, and think that this is the legal basis for universities to obtain autonomy. I beg to differ. The independent running of schools and democratic management here emphasize that colleges and universities should strengthen their own running ability under the conditions at that time. At the beginning of the legislation of People's Republic of China (PRC) Higher Education Law, the main consideration was that colleges and universities should be separated from the direct management of the government and stop relying too much on the government. There is no evidence that there is an intention to grant university autonomy. If we really grant the power of university autonomy, as mentioned above, we need perfect system guarantee. In fact, we didn't find the relevant regulations. The essence of autonomy is democratic management, and the essence of university autonomy is also a university jointly managed by university faculty, including all teachers and students, which can have a decisive impact on university affairs, which is not in line with the actual state of universities in China. Therefore, we can't expect too much from Article 1 1 of People's Republic of China (PRC) Higher Education Law. The autonomy of higher education institutions in China is different from that of western universities, so it cannot be concluded that universities have legislative power.

In fact, the right to formulate school rules of public universities in China does not come from university autonomy, but has its own generating logic. The right to make university rules comes from three aspects:

(a) the authorization of the Regulations on the Administration of Students in Colleges and Universities

Article 68 of the Regulations on the Management of Students in Ordinary Colleges and Universities formulated by the Ministry of Education stipulates: "Colleges and universities should customize or modify the regulations on the management of students in schools according to these regulations, and report them to the competent education administrative department for the record (the schools affiliated to the central ministries and commissions also send a copy to the local provincial education administrative department) and announce them to students in a timely manner." This provision is the authorization for colleges and universities to formulate school rules and becomes the legal basis for colleges and universities to formulate school rules.

The right of the Ministry of Education to formulate the Regulations on the Management of Students in Colleges and Universities belongs to its scope of functions and powers. Article 89 of the Constitution of People's Republic of China (PRC) stipulates that the State Council leads and manages "education, science, culture, health, sports and family planning", and Article 90 of the Constitution also stipulates that "ministries and commissions shall issue orders, instructions and rules within their respective functions and powers in accordance with laws and administrative regulations, decisions and orders of the State Council." It can be clearly seen from the provisions of the Constitution that education management is an important function of the State Council. Education is not a subordinate organ in charge of education in the State Council, and it has the right to issue regulations according to the superior law. Article 1 of the Regulations on the Management of Students in Colleges and Universities further explains the relationship between the regulations and the upper-level law. According to the Education Law, Higher Education Law and other relevant laws and regulations, the enactment of this Ordinance shows that the Ministry of Education is exercising legislative power within its own authority.

(two) the authorization of the Interim Measures for the implementation of the regulations on academic degrees in People's Republic of China (PRC).

Article 89 of the Constitution of China stipulates that the State Council has the right to "prescribe administrative measures, formulate administrative regulations and issue decisions and orders in accordance with the Constitution and laws". The Interim Measures for the Implementation of the Regulations on Academic Degrees in People's Republic of China (PRC) is an administrative regulation formulated according to the Regulations on Academic Degrees in People's Republic of China (PRC). Article 25 of the Administrative Regulations stipulates that "degree-conferring units may formulate their own detailed rules for degree conferring according to the Interim Measures". Based on this authorization, public colleges and universities with the right to confer degrees make their own detailed rules for degree management, which also constitutes a part of the school rules of public colleges and universities.

(3) The authorization of People's Republic of China (PRC) Higher Education Law.

Article 4 1 of the Higher Education Law of People's Republic of China (PRC) stipulates that the president of an institution of higher learning is fully responsible for the teaching, scientific research and other administrative work of the institution, and has the right to "draw up development plans, formulate specific rules and regulations and annual work plans and organize their implementation". The rules and regulations mentioned here should include school rules.

According to the Regulations on the Management of Students in Colleges and Universities and the Interim Measures for the Implementation of the Regulations on Academic Degrees in People's Republic of China (PRC), it is stipulated that school rules are the transformation of administrative regulations and rules under the specific conditions of our school. It should be said that the content and binding force of these school rules are the extension of the content and binding force of their original superior law in colleges and universities, and they are inherited school rules. "People's Republic of China (PRC) Higher Education Law authorizes principals to formulate school rules, which seems to be an efficient and autonomous legislation. But when you think about it carefully, it seems unreasonable that the law authorizes the client to legislate, because the effectiveness of the law comes from the collective contract of social members, not the individual will, so it should be understood as being convened or organized by the client.

It can be seen that the formulation of school rules of public universities in China comes from legal authorization. Legally speaking, this way of making school rules should belong to authorized legislation, because these authorizations come from legal authorization, so it is called legally authorized legislation. Although we have not solved the problem of independent legislative power of public universities in theory, it does not mean that there is no independent legislation in the school rules of public universities in China. Independent legislative power is one of the essential rights of colleges and universities, and it will not lose its nature voluntarily because there is no law. Even in the absence of laws, the rules and regulations of colleges and universities still exist. Therefore, colleges and universities have never given up the exercise of their rights, and they have never given up the right to formulate school rules and regulations in order to realize their functions. There are many contents that are not authorized by law or conflict with the superior law, and universities have been exercising their independent legislative power. The content of independent legislation in colleges and universities is not uncommon, but there is a legitimacy crisis in this part of school rules due to congenital defects.

Although China has solved the problem of the right to formulate school rules in public colleges and universities through authorized legislation, from the legal logic, this system is not perfect and there are the following problems worthy of discussion. First, the legitimacy of this legal authorization legislation is controversial. China's "Legislation Law" only lists the National People's Congress and its Standing Committee as authorized legislative matters to authorize the State Council to formulate administrative regulations, and other ways of authorizing legislation are not mentioned. Not only that, in the eyes of legislators, "in the future, with the gradual improvement of the law and the gradual formation of a relatively complete legal system, the scope of authorized legislation will naturally gradually narrow." It can be seen that China has a distrust of this legislative form authorized by law, and the legitimacy of the school rules of public universities will be questioned. Second, the Regulations on the Management of Students in Colleges and Universities is the authoritative legislation of the Ministry of Education. The set punishments include warning, serious warning, demerit recording, detention, expulsion from school, etc. , has affected students' rights and interests, especially expulsion from school, which involves students' right to education. This is a basic citizen's right guaranteed by the constitution, which belongs to the category of legal reservation and is a matter within the legislative scope of the National People's Congress and its Standing Committee. It is obviously low-level for departmental regulations to make creative provisions on this. Third, China's public colleges and universities are not administrative subjects except for special matters such as the exercise of the right to confer degrees. There is no distinction between public law and private law in our country. People's Republic of China (PRC) Higher Education Law defines public colleges and universities as legal persons, which is a kind of civil legal persons according to the usual understanding. Colleges and universities have not obtained the qualification of administrative subject through other laws, and authorizing colleges and universities to formulate school rules is equivalent to authorizing civil subjects to exercise legislative power. According to jurisprudence, civil subjects should not enjoy legislative power. Fourth, it is impossible for laws, administrative regulations and rules to stipulate all the problems in colleges and universities, otherwise the school rules will lose the necessity of existence, and the school rules will always contain the content of autonomous legislation. However, with the generation logic of the existing school rules, the autonomous school rules lack the legal basis.

If the above analysis is established, we can draw a conclusion that there are legal obstacles to the right to formulate school rules in public universities in China, and perfecting the legislative mechanism of universities and eliminating these obstacles is a natural subject for the rule of law in public university governance.

Fourth, establish a university autonomy system to open up channels for the legalization of school rules.

Both France and Germany realize university autonomy by establishing university public legal person system. Since April, 2004, Japan has granted all its 87 national universities the status of public legal person, and has carried out legal person transformation. The public corporation of Taiwan Province National University is also in the pipeline. Western university autonomy has formed a perfect legal system. On the existing basis, China's public universities should implement university autonomy and change the legal status of public universities from private universities to public universities.

In the system of university autonomy, university autonomy, public jurist, democratic management of university members, administrative subject and legislative power are inextricably linked. University autonomy is a way for the state to indirectly govern universities. For specific reasons, the state authorizes university members to manage their internal affairs, so universities have greater independence. The recognition of this independence is manifested in a form, that is, giving the university the status of a public jurist. The status of university autonomy and public jurist is similar in content and form. The essence of university autonomy lies in the decisive influence of university members on university affairs, that is, democratic management, which is not only the decision-making power of major issues in universities, but also the legislative power and administrative power, and the legislative power is embodied in the formulation of school rules.

(A) the choice of legal basis

Under the concept of a country ruled by law, the establishment of an autonomous system needs the explicit authorization of the law, and university autonomy is no exception. Although China's colleges and universities did not have the status of legal person in the process of corporate transformation, the Higher Education Law of People's Republic of China (PRC) left sufficient space for the autonomy of colleges and universities. Article 1 1 of the law stipulates that "institutions of higher learning should face the society, run their own schools according to law and practice democratic management."

Aside from other contents of People's Republic of China (PRC) Higher Education Law, if we interpret the meaning of this article in isolation, we will find that this article is an accurate summary of the university autonomy system. "Running schools independently according to law" means the legal person status of universities, and "implementing democratic management" aims at exerting decisive influence on university affairs by university members. The existence of this article is the legal basis of university autonomy in China. After the implementation of People's Republic of China (PRC) Higher Education Law, the reason why there is no university autonomy system in China is that the university legal person we set up is a private person, not a public person, and the democratic management of universities by university members has not been specifically implemented.

(B) the establishment of the status of public universities as legal persons

There are two ways to establish the public legal person system in colleges and universities. One way is to legislate the public legal person system separately, stipulating that all qualified public legal persons belong to public legal persons; The other is to clarify the status of universities as public legal persons in a certain higher education legislation. As far as the current situation is concerned, the latter is more feasible and faster. Our country is drafting the School Law, and it is an appropriate time to stipulate the legal person status of public universities in the part about higher education in this law.

(C) the democratic management of college members

The scope of university autonomy varies from country to country and has great flexibility, but its core is academic freedom. The democratic management system of universities should focus on academic freedom, establish democratic management institutions and exercise democratic management rights.

(4) Formulating school rules

The regulations include teacher management system and student management system. The legal binding force of regulations comes from the local democratic foundation in colleges and universities and the contractual rights transfer of college members. Its formulation must be the collective expression of the will of university members, not the authority of the current president. Therefore, in the process of making school rules, the teacher management system is formulated and passed by the staff congress composed of elected staff representatives, and the student management system (school rules) is formulated and passed by the assembly attended by elected student representatives and staff representatives, which can reflect the democratic basis of rule making and ensure the legitimacy of rules.

School rules are part of the legal system that students need to abide by. To ensure the legality of school rules, we need to pay attention to the following issues:

Abide by the principle of legal reservation. The scope of university autonomy is limited, which determines that school rules can only restrain students in a limited scope. Students are still citizens of the country, and their basic rights are still protected by the Constitution. Matters affecting students' basic rights shall be formulated by the National People's Congress and its Standing Committee. For example, expulsion from school affects students' right to education, which is a basic civil right protected by the Constitution. In order to show respect for citizens' basic rights and protection of important rights, the law should stipulate the punishment of expulsion from school. The scope of legal reservation is also a forbidden area for university autonomy. Only after the matters reserved by law are clearly defined can the remaining space be the field of university autonomy.

Formulate autonomous school rules within the scope of autonomy. Autonomous school rules are an important part of school rules, but this part must be within the scope of university autonomy and must not exceed the scope of university autonomy.

Shall not violate the superior law. China's relevant education laws, administrative regulations and rules are the operating rules of public universities, which play a normative role in universities and students. Compared with the school rules, they are superior laws, and the school rules of public universities must not conflict with these superior laws. In addition, the regulations of colleges and universities should accurately interpret the legislative intent of the superior law and keep consistent with the legislative intent of the superior law. If they violate the provisions of the superior law, the rules are invalid. For example, a degree is an evaluation of a student's academic level, and matters that affect a student's degree should also be academic matters. However, in China's public colleges and universities, the degree is almost always linked to the punishment of students, and some school rules stipulate that students with demerits or above will not be awarded degrees. This seems reasonable, but it contains logical contradictions. The main reason for punishing students is that their behavior constitutes a crime, violates the law or causes other damage to social order and school order, which is not an academic issue. Influencing students' degrees with factors unrelated to academics is equivalent to expanding the scope of factors affecting degree awarding, which is not in line with the legislative intent of the People's Republic of China (PRC) Academic Degrees Regulations, resulting in a substantial conflict between the school rules and the superior law.

Review and supervision of school rules by superiors. The legality of school rules in public universities needs to be tested, and the supervision of higher authorities is an important content. After the school rules are formulated, they should be reported to the administrative department of education, which will organize special personnel to review the legality of the school rules.

Verb (abbreviation of verb) conclusion

Governing the country according to law requires clarifying the legal status of the school rules of public universities and rationalizing relevant legal issues. The legal status of the existing school rules of public universities in China is not clear, because the legal status of public universities is not accurate. After being separated from the direct management of the government, public colleges and universities have not introduced the system of university autonomy, and cannot obtain the qualification of legislative power and administrative subject, which leads to the gap between the legal status of school rules and their proper status. We should establish a system of university autonomy and recognize the legal person status of public universities. Public colleges and universities implement democratic management, and the "social contract" reached by the transfer of college members' rights makes the right to make school rules legal, so school rules become students' laws. The scope of university autonomy is limited. The National People's Congress or its Standing Committee should make provisions on matters reserved by law, define the space of university autonomy, and public universities should formulate autonomous school rules within the scope of autonomy. Whether it is a formality or an independent school rule, it should comply with laws, administrative regulations and the rules of the Ministry of Education. The administrative department of higher education should actively exercise the right of inspection and supervision over public universities to ensure the legality of school rules.