As a new form of educational management organization in modern society, educational legal system is a legal adjustment field formed and developed with the popularization and development of education. It is an important symbol of educational modernization to give full play to the state's management and coordination functions in education through the legal system and finally realize citizens' individual right to education. Since 1980s, China's education legal system has been guided by People's Republic of China (PRC) 1980 degree regulations, and then 1995 Education Law and 1998 Higher Education Law have been promulgated and implemented, basically forming an education legal system guided by the Constitution, with education law as the basic law, departmental laws as the specific adjustment norms, supplemented by educational administrative regulations, local regulations and rules. Looking at the existing educational legal system in China, we can find that all laws follow a basic idea, that is, how to guarantee the realization of citizens' right to education. The only question is whether we have achieved it and how. The reasons for this are:

1. Judging from the relevant provisions of international law signed by China. Since 1948 "Everyone has the right to education. Since the goal of education is to fully develop personality and strengthen respect for human rights and fundamental freedoms "was written into the Universal Declaration of Human Rights, the right to education as a basic human right has become an internationally recognized norm. And it has been constantly reaffirmed and strengthened in subsequent relevant international treaties. For example, the International Covenant on Economic, Social and Cultural Rights (article 13) adopted in 1966 and the Convention on the Rights of the Child (article 28) which came into force in 1990. As one of the contracting parties to these treaties, China shows that the government recognizes the contents of these treaties and has made active efforts to this end.

2. From the changes in the provisions on education in the Constitution since the founding of the People's Republic of China. Although the four constitutions promulgated since the founding of the People's Republic of China have different provisions on education, the only constant common provision is that "citizens have the right to education" and "women in People's Republic of China (PRC) enjoy equal rights with men in politics and culture". This immutable provision has raised citizens' right to education from a natural right to a legal right, from the unequal privilege enjoyed by a few people to the universal equal right of all citizens, and has made special provisions on the cultural and educational rights of women, a vulnerable group, which undoubtedly provides constitutional guarantee for citizens to enjoy equal educational opportunities. Only from this point of view, the concept of education as a basic right of citizens has been deeply rooted in the concept of our country's policymakers.

3. In terms of system, the legal system of compulsory education is the most thorough protection for children's right to education. As the first education law enacted by the National People's Congress, the highest organ of state power, before the Education Law of the People's Republic of China, the promulgation and implementation of the Compulsory Education Law not only attached importance to children's right to education, but also embodied the concept of building a country through education. The obligations of the Compulsory Education Law to the state, local governments, social organizations and individuals, teachers and parents show that children's right to education is the core of citizens' right to education, and in a sense, it also indicates that the subsequent education legal system will also focus on how to ensure the realization of children's right to education in a certain range. For example, the Teacher Law of 1993 was formulated to ensure the legitimate rights and interests of teachers, but it can be said that its ultimate goal is to better protect the learning rights of the educated. However, despite this, we can't deny that traditional educational nationalism and educational cubism have hindered the establishment of educational humanism to a great extent, or that educational humanism has not been well demonstrated. Education For individuals, the imperial examination system and fierce examination competition system from ancient times to the end of Qing Dynasty make education as the capital of personal survival deeply rooted in personal ideas, especially in today's academic society and market competition system. Since 1980s, the establishment of the strategy of "giving priority to education" and "rejuvenating the country through science and education" has strengthened the idea that education as a national cause can enhance national strength. The author does not deny these two points. Education is indeed a national undertaking, and it can really develop itself and become a capital to live in the world. However, this is only in the sense that education is a tool. In essence, education is the basic right of human beings. At the beginning of the founding of the People's Republic of China, it developed as a human potential, making "people" more human, that is, the so-called "perfect personality". Therefore, educational humanism is the foundation of education. The stipulation of citizens' right to education in our constitution shows that we have realized the significance of education as a human right, and it should also be carried out around this fundamental principle in all educational legal systems. Therefore, we must truly establish the idea that education is a human right, so that the state, schools, families, society and other subjects can consider education from the perspective of ensuring the realization of every citizen's right to education and fully fulfill their respective educational obligations.

Second, the rationality analysis of compulsory education law

If everyone is recognized as having equal right to education, the concepts and basic principles that China's current educational legal system must establish are equal educational opportunities and legal principles based on the right to education on the premise of not violating the international norms of the relevant education conventions that have been signed. These two points can be said to be the principle basis for judging the rationality of the current education law and its realization degree; Secondly, if we assume that China's legislative procedure is legal, then the clarity and operability of legislative technology, that is, the composition and terminology of the law itself, is also an important aspect of judgment. Because "the clearer the law, the easier it is to implement its provisions"; Thirdly, based on the application of the law, from the feedback of educational practice, it is also an important aspect to test whether the law is feasible, that is, whether we are talking about "hard law" or "soft law". Based on the above principles, the Compulsory Education Law is briefly analyzed and evaluated.

1. The Compulsory Education Law consists of 18, regardless of chapters. Moreover, each article does not clearly indicate its meaning. This theme-free composition is unscientific and unclear for an important one-way law. Especially as a law to adjust various social relations in the field of compulsory education, the "obligation" of this law itself determines that the accountability clause of the subject who performs the obligation should account for a large proportion, which is precisely what the compulsory education law does not stipulate, that is, the part that lacks "legal responsibility". However, this structural ambiguity has been compensated in the Detailed Rules for the Implementation of the Compulsory Education Law.

2. The purpose and basis of the compulsory education law. Article 1 of the Compulsory Education Law begins with the clear meaning that "this Law is formulated in accordance with the Constitution and China's actual situation in order to develop basic education and promote the construction of socialist material civilization and spiritual civilization". This goal was correct then and now. But this only illustrates one aspect. If it is recognized that in the constitutional provision that "citizens have the right and obligation to receive education", "right" is the foundation and obligation is only set to ensure the realization of rights, then the fundamental purpose of the compulsory education law should be "to ensure the realization of children's right to receive education in the compulsory education stage". So, should a clause like this be stated in 1?

3. Language of legal provisions. We know that a very important requirement of legal terminology is clarity, concreteness and operability. Otherwise, it will inevitably bring difficulties to educational practice.

① About the age of admission. Article 5 of the Compulsory Education Law stipulates that "all children who have reached the age of six, regardless of gender, nationality or race, should attend school and receive compulsory education for a specified number of years. Areas that do not have the conditions can be postponed to seven years old. " The key word "areas without conditions" here refers to which areas and which "conditions" are not clearly defined, and there is no supplementary explanation in the Implementation Rules of the Compulsory Education Law, which will undoubtedly cause some confusion in practice. 1997 occurred in Jinan, Shandong Province. A six-and-a-half-year-old child didn't go to school on time according to the Compulsory Education Law because he didn't meet the requirement that he must be six years old 10 months before entering school in the Enrollment Plan for Primary and Secondary Schools formulated by the local education commission. The focus of litigation dispute lies in the understanding, explanation and explanation of "areas without conditions", and there is no clear and legally effective explanation so far. Finally, children who should go to school on time have their right to education violated.

(2) Subsidies for poor students. "The state establishes grants to help poor students go to school" (Article 10, paragraph 2). Paragraph 2 of Article 17 of the detailed rules for implementation stipulates that "students with financial difficulties in their families shall be exempted from miscellaneous fees as appropriate". Article 18 "The poor students who enjoy the grant according to the second paragraph of Article 10 of the Compulsory Education Law refer to the students with financial difficulties in junior middle schools and special education schools, and the students with financial difficulties in primary schools and other boarding primary schools in areas where ethnic minorities live in concentrated communities, economically disadvantaged areas and remote areas". Although the detailed rules are supplemented, there is no restriction on the most critical standard of "poverty", that is, what kind of students can be called "poor students" and what does "family financial difficulties" mean? We say that it is impossible to help all poor children without legal standards to judge "poverty". Let's just say that this is reasonable by default, so what will it actually be implemented?

A survey conducted by Yu Xianfan and others on the actual situation of girls' right to education in Niugang Township, the poorest township in Yixian County, Hebei Province, shows that poverty affects the realization of girls' right to education in Niugang Township in several aspects: first, the education cost rises, and farmers are overwhelmed and sacrifice girls' right to education first; Secondly, poverty makes farmers bear great pressure to survive, and their endurance is in a critical state. A slight change will easily endanger girls' schooling; Third, there are few middle schools, which are far from home, and girls also interrupt their studies.

China Science and Technology Development Research Center and Hope Project Benefit Evaluation Group pointed out in the Report that "compared with non-state-level poverty-stricken counties, although the phenomenon of children dropping out of school in state-level poverty-stricken counties has been greatly alleviated in recent years, the proportion of children dropping out of school is still quite high. 1996, the absolute number of out-of-school children in national poverty-stricken counties was 997.0, accounting for 2.3% of the total number of primary school students, which was 1.6 percentage points higher than that in non-national poverty-stricken counties (0.7%). It can be seen that being unable to go to school because of family poverty is the main reason why children in poor areas are out of school. 1996, nearly 70% of children are still out of school because of poverty. From the results of the above two empirical surveys, it can be found that the main reason why children in poor areas drop out of school is that their families are in financial difficulties and cannot afford the miscellaneous expenses needed for textbooks and other education. If you get donations like Project Hope, most out-of-school children can go back to school. Therefore, we can't help but ask: Have the state and local people's governments fulfilled their legal obligations of "the state sets up grants to help poor students go to school" and "reducing and exempting miscellaneous fees for students with financial difficulties as appropriate"? As some scholars have pointed out, "it is not a question of whether compulsory education should be exempted from miscellaneous fees, but a question of whether to do it." "

There is a passage in Learn to Live-Today and Tomorrow in the Education World that deserves our consideration: "... contrary to fairness and rationality, those with the lowest social status often do not enjoy the right to education-in this respect, civilization is now proud of it prematurely. In a poor society, they are first deprived of their rights; In a rich society, they are the only people who are deprived of their rights. ..... No matter whether education has the power to reduce this inequality between individuals and groups in its own field, if it wants to make progress in this respect, it must adopt a firm social policy in advance and correct the unfair distribution of educational resources and power. "

③ About the legitimate rights and interests of teachers. "The state protects the legitimate rights and interests of teachers and takes measures to improve their social status and material treatment" (Article 14 of the Compulsory Education Law). One of the most important "legitimate rights and interests" of teachers is to "get paid on time, enjoy the welfare benefits stipulated by the state, and take paid vacations in winter and summer vacations" (Article 7, paragraph 4, of the Teachers Law). We know that obtaining labor remuneration is an important aspect of ensuring teachers' life, and teachers' living conditions undoubtedly directly affect their educational and teaching status, and then directly affect the realization of children's right to education. In other words, the victims are not only teachers, but also innocent children. Although "Teachers Law" has been promulgated and implemented for 8 years, at present, in some areas, the phenomenon of teachers' salary arrears still exists, which leads to the continuous occurrence of teachers' collective strikes, and finally infringes on students' right to education. It has been 15 years since the promulgation and implementation of the Compulsory Education Law. The achievements made in popularizing compulsory education during this period are really a gamble. However, the gradual establishment of educational human rights thought and many changes in the social field have made many imperfections in the educational legal system, including the Compulsory Education Law, increasingly obvious. For example, the Teachers Law lacks provisions on teachers' disciplinary rights, and the Education Law lacks provisions on parents' educational rights, which can no longer meet the requirements of objective reality. Therefore, it is imperative to further supplement and improve the legal system of compulsory education according to the problems existing in current educational practice, so as to make it truly concrete and operable and give full play to the regulatory role of the law.

Third, improve the current legal system of compulsory education.

1The Ninth National People's Congress in March, 1999 wrote "ruling the country according to law" into the Constitution, marking the beginning of China's March towards a modern country. This undoubtedly provides a constitutional basis for "administering education according to law". Although we are not omnipotent advocates of laws and regulations, adhering to the modern legal principles of legalism is not only in line with China's legal tradition, but also an inevitable requirement of realistic and objective needs.

Regarding the popularization of compulsory education, Japan is a successful model, which has been recognized by the educational circles in China and even the world. Japan, built on the ruins of defeat, has realized the transformation from imperial power to legalism under the constitutional principle of national sovereignty and the educational concept of the theory of national education right, taking the Basic Education Law and School Education Law of 1947 as the basic educational legal system in the field of education. One of the reasons for Japan's successful popularization of compulsory education can be said to be the establishment of a relatively perfect legal system for compulsory education, which is resolutely implemented by national and local governments at all levels according to law. Japan has not enacted a special law, the Compulsory Education Law, like China, to regulate all kinds of social relations during the implementation of compulsory education. Instead, under the guidance of the four basic educational legal principles of "guaranteeing the right to education as the foundation, legalism as the legal system, basic education law as the basic principle and local autonomy of educational administration", a relatively complete current educational legal system has been formed. The legal provisions on compulsory education can be said to involve almost all fields such as the national treasury burden of education funds, the free use of textbooks, the salary of teaching staff, the political neutrality of education, the establishment of classes, children with learning difficulties and children with physical and mental disabilities. For example, only the "legal system for guaranteeing the economic aspects of the subject of the right to education" includes the following laws: the Child Welfare Law, the Life Protection Law, the Juvenile Law, the Industrious Juvenile Welfare Law, the Basic Law on Countermeasures for the Physically and Mentally Disabled, the State Aid Law on Rewarding Children and Students with Learning Difficulties, and blind schools. The Law on Rewarding Schools for the Deaf and Maintaining Schools, the Law on Free Textbooks for Compulsory Education Schools, the Law of Japan Education Association, the Law on Compulsory Education Fees and the Law on the National Treasury, the Law on Revitalizing Private Schools, the Law on Revitalizing Education in Remote Areas, the Law on the Wages and Salaries of Teachers in Street and Rural Schools, the Law on the National Treasury of Compulsory Education School Facilities, and the Law on Restoring the National Treasury of Public School Facilities after Disasters.

In a sense, the problems encountered in popularizing compulsory education in Japan are very similar to those concerned by China, especially in the economic security of the educational subjects (that is, children). Although the problem domain is the same, it is handled in different ways. Generally, the problems we need to solve are only specified as one or more of them in the Compulsory Education Law or its implementing rules, which will inevitably lead to incomplete law enforcement. In Japan, separate laws are formulated for each problem, supplemented by specific implementation orders or rules. For example, in order to ensure the smooth completion of compulsory education for children from poor families, Japan promulgated and implemented the Law on National Assistance to Children and Students with School Difficulties in 1956, stipulating that "this Law is aimed at local public organizations that implement measures such as rewarding school supplies for children and students with school difficulties due to economic reasons. The purpose is to ensure the smooth implementation of compulsory education in primary and secondary schools by providing necessary assistance to these local public organizations. " It is pointed out that "those who need protection according to Article 6, paragraph 2 of the Life Protection Law (or those whose poverty level is equivalent to that stipulated in Article 6, paragraph 2 of the Law) can provide subsidies for school supplies or purchase expenses, transportation expenses for children or students to attend day schools and children or students within the budget. According to this law, any child who is in financial difficulties within the scope of the law can undoubtedly get some subsidies from the state and will not be deprived of the right to education for economic reasons.

There are some problems in reflecting on the provisions of the Compulsory Education Law of China on the financial aid for children from poor families. First, there is a lack of recognition of the legal qualifications of children with family difficulties. Of course, this is not stipulated by the education law itself, but involves the question of what is "poverty", which belongs to the adjustment scope of the living welfare or living security law and should be stipulated by it; Second, it is stipulated in the detailed rules that "children with financial difficulties in the family shall be exempted from miscellaneous fees as appropriate". What does "discretion" mean here? Who has the qualification and power to "consider" this situation? How to "drink" And what are the discretionary "emotions"? Who is qualified to stipulate that these "situations" can be subsidized? And so on, these are the lack of clear and unified regulations; Third, the detailed rules stipulate that the specific implementation measures of the bursary shall be formulated by the provincial people's government. However, in the Compulsory Education Law, it is the "state" that sets up grants to help poor students go to school. I would like to ask: is the state or the people's governments at all levels ultimately implementing subsidies? What is the power and responsibility relationship between the two in implementing school subsidies? In addition, the imbalance of economic development and the difference of financial capacity in different provinces will inevitably lead to the differences in the regulations of the people's governments of different provinces and the differences in the standards and scope of assistance for "poor" children. Is this unfair? How should countries coordinate from the perspective of fairness and integrity? Related to this, there are two issues that need special clarification. First, consistent with the principle of "the whole society takes action" in education reform, it is necessary to step up the formulation of relevant operable laws to improve the compulsory education law, but it cannot be solved only in the field of compulsory education and needs to be carried out in a wider legislative field; The second is the reflection on the compulsory education system. The Compulsory Education Law clearly stipulates the cause of compulsory education, and implements the system of "under the leadership of the State Council, local governments are responsible for it, and management at different levels". This system can be said to "mobilize the enthusiasm of governments at all levels and the masses to run schools and accelerate the process of popularizing compulsory education". But the problem is that the fact that the economic development in different parts of our country is unbalanced inevitably determines the unbalanced development of compulsory education regions and the unbalanced development of rural areas in a certain region. Then, under the existing education system, how should the state ensure the development of compulsory education in poor counties and villages? Although we can give examples to prove that the country has done this. For example, from 1995 to 2000, the State Education Commission and the Ministry of Finance jointly organized and implemented the "National Compulsory Education Project in Poverty-stricken Areas". However, "project" means a short-term government behavior, not a lasting legal norm behavior. What if some poor areas still have not got rid of education poverty? I think this is one of the important problems we are facing at the beginning of this century.

Since the law stipulates that "the state develops compulsory education", under the premise of following the current compulsory education system, it is urgent to clarify the responsibility of the state for compulsory education and the proportional distribution of educational investment between the state and local governments. Compulsory education in poverty-stricken areas should also be promoted from moral behaviors such as support and assistance to the level of rule of law, clearly stipulate the appropriate proportion of the state's burden on compulsory education in poverty-stricken counties, townships and villages, give lasting subsidies, and earnestly follow the basic principle of equal educational opportunities.

In a word, there are still many imperfections in the current legal system of compulsory education in China. It goes without saying that corresponding amendments are needed, and corresponding laws and regulations need to be formulated to supplement and improve them. Because the most obvious problem in practice is the lack of education funds, and the solution of this problem depends largely on the state and the government. Therefore, the key point is to formulate the Law on Compulsory Education Funds, clearly stipulate the appropriate proportion of compulsory education funds in the national budget, and stipulate the legal responsibility for non-performance of legal obligations. In addition, we should also formulate separate laws and regulations to provide schooling assistance and protection for children from poor families, disabled children and other vulnerable children whose educational rights are easily violated, and provide financial assistance for the development of compulsory education in poor areas, so as to truly provide concrete and operable laws for the implementation of compulsory education according to law and effectively implement the laws.