Teachers' basic rights are the possibility of realizing their own interests according to their own wishes in the process of performing their duties according to the provisions of the law or pending contracts. These rights are manifested in the fact that teachers, as the subject of rights, have the right to act or not to act, and the possibility of asking others to act or not to act. Specifically, the basic rights of teachers include the following aspects:
(a) The right to education and teaching activities
The first paragraph of Article 7 of the Teachers Law stipulates: "Carry out educational and teaching activities and carry out educational and teaching reforms and experiments". Teaching and educating people is the most basic right and obligation of teachers. The products provided by teachers to the educated are teaching services. The main features of this product are invisibility, inseparability of teaching and learning and tradeability. Education and teaching activities are not isolated, but a very complex systematic project, including training objectives and courses, teaching materials and professional innovation, political and ideological education, examination evaluation and ability training, campus culture and extracurricular activities.
Teachers' teaching activities are a process of teaching and learning. In this process, teaching exists for learning, and learning is guided by teaching, which is an interactive and unified whole. In teaching activities, teachers, students, teaching content and teaching methods are essential elements. The first element is the teacher, who is not only the organizer of teaching activities, but also an important subject to impart knowledge. Therefore, only when the rights of teachers' education and teaching activities are fully guaranteed can the school's teaching activities be carried out normally.
(2) The right to engage in scientific research and academic exchanges.
The report of the 16th National Congress of the Communist Party of China pointed out: "Strengthen the construction of teachers and improve teachers' professional ethics and professional level". This is the party's strategic guidance for building a team of high-quality teachers. The improvement of teachers' professional level mainly includes the improvement of knowledge, ability and quality. In particular, teachers' knowledge is single and unchangeable, and needs to be constantly maintained and updated. For example, teachers who teach international trade law should not only pay attention to the traditional trade in goods and its legal changes, but also seriously study the legal framework of international trade in services and technology, as well as trade-related intellectual property rights and investment measures.
Paragraph 2 of Article 7 of the Teachers Law stipulates that teachers have the right to "engage in scientific research and academic exchanges, participate in professional academic organizations, and fully express their opinions in academic activities". Therefore, schools must guarantee the right of teachers to actively engage in scientific research and academic exchanges while teaching, especially to increase financial support for scientific research in colleges and universities and encourage teachers to participate in various high-level academic exchange activities.
(3) Guiding students and evaluating students' rights.
Students' learning activities are carried out under the guidance of teachers, who play an extremely important role in students' learning process. Education is a purposeful and planned activity to train the educated. The learning activities of the educated must be carried out under the guidance of teachers according to the requirements of training objectives and the specific requirements of a teaching plan. Through teachers' guidance on students' learning and development, students can avoid the tortuous road of repeated exploration and achieve more effective learning results in a short time. In addition, teachers, as the main body of teaching activities, have the right to evaluate students' conduct and learning. Of course, when evaluating students' conduct and study, teachers must be objective and fair, not subjective and one-sided, and not infringe on students' legitimate rights and interests. Education administrative departments, schools, students and parents should fully respect teachers and ensure that teachers' right to guide and evaluate students can be fully implemented.
(4) the right to get paid on time
The famous hierarchy of needs theory of American psychologist Maslow has been accepted by all walks of life today. According to Maslow's hierarchy of needs, there are five levels of human needs, namely, physiological needs, security needs, belonging needs, respect needs and self-realization needs. Maslow believes that before the physiological needs are met, other needs will not be used as the basis of motivation, because personal survival is the most basic and important consideration.
At present, some schools are seriously in arrears with teachers' salaries, and the arrears are long and large. According to the survey in Henan Province, the arrears of teachers' salaries in this province exceed 200 million yuan, and some places are more than 10 months. These behaviors seriously violated teachers' basic right to exist, greatly hurt teachers' feelings, and more importantly, seriously violated the mandatory provisions of national laws. The fourth paragraph of Article 7 of the Teachers Law of People's Republic of China (PRC) stipulates that teachers have the right to "get paid on time, enjoy the welfare benefits stipulated by the state, and take paid vacations in winter and summer vacations"; Article 30 of the Law on the Promotion of Private Education, which came into effect on September 1 2003, stipulates: "Private schools shall guarantee the salaries and welfare benefits of teaching and administrative staff according to law and pay social insurance premiums for teaching and administrative staff". It is conceivable that if teachers' basic right to subsistence is not guaranteed, how can they be guaranteed to engage in teaching? If normal teaching cannot be guaranteed, how can we ask them to train qualified builders and successors of the socialist cause?
(five) the right to put forward opinions and suggestions on school teaching management.
In school, teachers are the main body engaged in teaching, and the task of education and teaching is completed by teachers; The staff of the school's administrative logistics department serve the teaching. They are not so much managers as service providers. Some school administrative departments put the cart before the horse and put the official standard into practice, which not only refused to adopt teachers' correct opinions and construction, but also dampened teachers' enthusiasm for participating in school democratic management. It should be pointed out that the administrative staff of a school may not know everything about the operation of the school, nor may they have the professional knowledge to manage the school. Teachers are professionals working in the front line of teaching, and some teachers are experts in a certain field. They have a better understanding of the school and have the motivation to manage the school. If these talents are not considered in the decision-making of education, teaching and teaching management, the rationality and legitimacy of school management decisions are incomplete or even wrong to some extent.
Teachers' participation in school management is mainly achieved through teachers' congresses. The fifth paragraph of Article 7 of the Teachers Law stipulates that teachers have the right to "put forward opinions and suggestions on the work of the school's education, teaching, management and education administrative departments, and participate in the democratic management of the school through staff congresses or other forms". The Regulations on the Staff Congress of Colleges and Universities also clearly stipulates that "schools should establish and improve the staff congress system with teachers as the main body and strengthen democratic management and supervision."
At this stage, only public colleges and universities have set up staff congresses, and whether private colleges and universities have set up staff congresses is clearly stipulated. However, the Law on the Promotion of Private Education stipulates that "teachers in private schools have the same legal status as teachers in public schools". Since teachers in public schools have the right to participate in the democratic management of schools in the form of staff congresses, teachers in private schools should also have this right Teachers' participation in school democratic management can not be achieved by individual behavior, but only by forming a certain organization to participate in management can the goal be achieved. Therefore, the author suggests that the law should play a regulatory role in the absence of teaching staff in private schools.
(six) the right to participate in continuing education and training.
Article 7, paragraph 6, of the Teachers Law stipulates that teachers have the right to "participate in advanced studies or other forms of training". The report "Learn to survive-today and tomorrow in the world of education" by UNESCO points out: "We can no longer acquire knowledge once and for all, but need to learn how to build an evolving knowledge system all our lives-learn to survive". As a teacher who teaches and educates people, if you want to survive, you have to keep learning and learn for life. Lifelong learning has become an inevitable requirement of knowledge economy, knowledge society and human development in the 2 1 century. Teachers, in particular, as a special subject, can adapt to the changing situation only by constantly improving their own quality, and can keep pace with the times only by constantly learning and updating their knowledge. Therefore, education administrative departments and schools should actively provide teachers with opportunities for further study or training, and give strong financial support, which is not only the need of school development, but also the legal obligation of school operators.
(1) Learn to Live-Today and Tomorrow of the Education World, Education Science Press.
Second, the legal protection and relief of teachers' rights and interests.
The legitimate rights and interests of teachers are guaranteed by the state's coercive power. Broadly speaking, it is an important aspect of protecting teachers' legitimate rights and interests to strengthen the legislation to protect teachers and make China's education laws more and more complete. At the same time, it is also an important part of protecting teachers' legitimate rights and interests to strengthen social legal publicity and education so that every teacher knows what rights he enjoys and what obligations he undertakes, so as to correctly exercise his rights and consciously perform his obligations. It should be pointed out that protecting the legitimate rights and interests of teachers is the common task of all law enforcement departments. The legal protection of interests includes ex ante legal rules and ex post legal remedies. The rule of law in advance refers to the law as the standard and measure of behavior, which judges and measures the right and wrong of people's behavior, thus affecting the value judgment of the whole society on its own actors; The function of legal relief afterwards is to provide legal compensation for victims whose rights have been damaged, so that the damaged rights can be restored and remedied. Of course, what we want to see is the legal protection of teachers in advance.
In practice, the legal protection of teachers' rights and interests mainly refers to the after-the-fact relief when teachers' rights and interests are illegally infringed, that is, the relevant legal systems and procedures for the law to restore and remedy their rights and interests.
(A) the civil law protection of teachers' rights and interests
Teachers' property rights and personal rights are the key contents of civil law protection in China. In civil law, property right is a kind of property right, which can be divided into two categories: self-property right and other property right Property right is ownership, the right to possess, use, benefit and dispose of one's own property; His real right is the real right of non-property owners to set rights on other people's property. Personal rights refer to civil rights that are inseparable from the person of the civil subject and have no direct property content. According to the nature of rights, personal rights can be divided into personality rights and identity rights. The former mainly refers to the personal right that the right subject is endowed by law to safeguard his own survival and dignity. Such as the teacher's health, reputation, name, etc. ; The latter refers to the personal rights related to the status of civil subject based on certain behaviors and relationships protected by law. Teachers are awarded the honorary title of "National Model Teacher", which is the right of honor related to the right of identity.
When teachers' civil rights are infringed, they can bring the following three kinds of lawsuits according to different situations:
1. Confirm the operation. The action of confirmation is a lawsuit in which teachers ask the court to confirm the ownership, nature, existence and effectiveness of disputed civil rights in accordance with the trial procedure. For example, teachers can only be deprived of the title of "National Excellent Teacher" under the circumstances stipulated by law. If the school deprives teachers of their "honorary title", teachers have the right to ask the court to confirm whether the school's behavior is effective, thus protecting teachers' legitimate honor rights;
2. Payment litigation. The lawsuit of payment is a lawsuit in which teachers, as the subject of civil rights, request the court to force the obligor to perform certain civil payment obligations in accordance with the trial procedure in order to realize their own interests. For example, ask the obligor to pay the arrears of wages. ;
3. Complaints about formation. The lawsuit of formation is a lawsuit in which teachers ask the court to change the existing civil rights and obligations, form new civil rights and obligations, or eliminate an existing civil rights and obligations in accordance with the trial procedure. For example, teachers have the right to claim the authorship of cooperative works when they are published.
(B) the criminal law protection of teachers' rights and interests
The purpose of criminal law is to punish crimes and protect people. Through the relief of criminal law, we can repair the social relations infringed by criminals' criminal acts, so as to uphold justice for the victims. Compared with civil law, criminal law has the characteristic of indirect compensation for victims. However, the application of criminal law can achieve social justice and thus achieve the purpose of purifying the social environment.
China's "Teacher Law" specifically stipulates two situations of criminal investigation. First, insulting and beating teachers, if the circumstances are serious enough to constitute a crime, criminal responsibility shall be investigated according to law; Second, if a state functionary retaliates against a teacher who has lodged a complaint, accusation or report according to law, which constitutes a crime, he shall be investigated for criminal responsibility in accordance with the provisions of Article 254 of the Criminal Law (the crime of retaliating and framing).
(C) Administrative law protection of teachers' rights and interests
Administrative legal relief is mainly through the provisions of the relevant administrative substantive law and administrative procedural law, giving the administrative counterpart the right to know about the administrative actions of administrative organs and the right to state, defend and obtain relief for their legitimate rights and interests, so as to solve administrative disputes. The administrative legal relief procedure in the Teacher Law is mainly embodied in the teacher's appeal system. It should be pointed out that the appeal system in the Teachers Law is different from the general appeal system. It is a binding and executive legal appeal system in administrative law.
According to the provisions of the Teachers Law, teachers can lodge complaints under the following circumstances:
1. Teachers may complain to the administrative department of education about the violation of their legitimate rights and interests by schools or other educational institutions. The legitimate rights and interests here include all the rights of teachers in scientific research and academic exchange, guidance and evaluation of students, remuneration and democratic management in teaching activities as stipulated in the Teachers Law.
2 teachers who are dissatisfied with the handling of schools or other educational institutions may lodge a complaint with the administrative department of education.
The administrative department of education shall handle the above two complaints within 30 days after receiving them.
3. Teachers may complain to the people's government at the same level or the relevant departments of the people's government at the next higher level if they think that the relevant administrative departments of the local people's government have violated their rights stipulated in the Teachers Law.
Teachers' rights and interests need to be standardized and protected according to law, which is a major event related to the rise and fall of education in China and must be highly valued by relevant departments. 66699999 2009-11-0617: 44: 42 Legal protection of college teachers' basic rights.
Wang Chunhui
(Dalian Business School, Dalian, Liaoning 1 16039)
This paper gives a general theoretical explanation of the concept and connotation of teachers' basic rights in colleges and universities, and points out that the basic role of teachers in cultivating talents is recognized by the whole society, and the legitimate rights and interests of teachers must be protected according to law.
Keywords: teachers' rights, legal protection, legal relief
The report of the 16th National Congress of the Communist Party of China pointed out: "Respect for labor, knowledge, talents and creation should be taken as a policy of the party and the country and seriously implemented in the whole society". Teachers who teach and educate people and train builders and successors of the socialist cause are professionals who carry out the tasks of imparting cultural and scientific knowledge to the educated, carrying out ideological and moral education and cultivating useful talents needed by society. It should be pointed out that the basic role of teachers in rejuvenating the country through science and education and cultivating talents is beyond doubt and recognized by the whole society, and the whole society should respect teachers. We have shouted the slogan of "respecting teachers and attaching importance to teaching" for more than ten years, but the phenomenon of ignoring and belittling teachers' status and infringing on teachers' rights and interests still occurs frequently.
The social atmosphere of "respecting teachers and attaching importance to teaching" and safeguarding teachers' rights and interests are issues that teachers are extremely concerned about. This paper discusses the legal protection and relief of teachers' rights and interests, hoping that these problems can attract the attention of education administrative departments, school management and teachers, and can be solved to some extent.
First, the basic rights of teachers.
Teachers' basic rights are the possibility of realizing their own interests according to their own wishes in the process of performing their duties according to the provisions of the law or pending contracts. These rights are manifested in the fact that teachers, as the subject of rights, have the right to act or not to act, and the possibility of asking others to act or not to act. Specifically, the basic rights of teachers include the following aspects:
(a) The right to education and teaching activities
The first paragraph of Article 7 of the Teachers Law stipulates: "Carry out educational and teaching activities and carry out educational and teaching reforms and experiments". Teaching and educating people is the most basic right and obligation of teachers. The products provided by teachers to the educated are teaching services. The main features of this product are invisibility, inseparability of teaching and learning and tradeability. Education and teaching activities are not isolated, but a very complex systematic project, including training objectives and courses, teaching materials and professional innovation, political and ideological education, examination evaluation and ability training, campus culture and extracurricular activities.
Teachers' teaching activities are a process of teaching and learning. In this process, teaching exists for learning, and learning is guided by teaching, which is an interactive and unified whole. In teaching activities, teachers, students, teaching content and teaching methods are essential elements. The first element is the teacher, who is not only the organizer of teaching activities, but also an important subject to impart knowledge. Therefore, only when the rights of teachers' education and teaching activities are fully guaranteed can the school's teaching activities be carried out normally.
(2) The right to engage in scientific research and academic exchanges.
The report of the 16th National Congress of the Communist Party of China pointed out: "Strengthen the construction of teachers and improve teachers' professional ethics and professional level". This is the party's strategic guidance for building a team of high-quality teachers. The improvement of teachers' professional level mainly includes the improvement of knowledge, ability and quality. In particular, teachers' knowledge is single and unchangeable, and needs to be constantly maintained and updated. For example, teachers who teach international trade law should not only pay attention to the traditional trade in goods and its legal changes, but also seriously study the legal framework of international trade in services and technology, as well as trade-related intellectual property rights and investment measures.
Paragraph 2 of Article 7 of the Teachers Law stipulates that teachers have the right to "engage in scientific research and academic exchanges, participate in professional academic organizations, and fully express their opinions in academic activities". Therefore, schools must guarantee the right of teachers to actively engage in scientific research and academic exchanges while teaching, especially to increase financial support for scientific research in colleges and universities and encourage teachers to participate in various high-level academic exchange activities.
(3) Guiding students and evaluating students' rights.
Students' learning activities are carried out under the guidance of teachers, who play an extremely important role in students' learning process. Education is a purposeful and planned activity to train the educated. The learning activities of the educated must be carried out under the guidance of teachers according to the requirements of training objectives and the specific requirements of a teaching plan. Through teachers' guidance on students' learning and development, students can avoid the tortuous road of repeated exploration and achieve more effective learning results in a short time. In addition, as the main body of teaching activities, teachers also have the right to evaluate students' conduct and learning. Of course, when evaluating students' conduct and study, teachers must be objective and fair, not subjective and one-sided, and not infringe on students' legitimate rights and interests. Education administrative departments, schools, students and parents should fully respect teachers and ensure that teachers' right to guide and evaluate students can be fully implemented.
(4) the right to get paid on time
The famous hierarchy of needs theory of American psychologist Maslow has been accepted by all walks of life today. According to Maslow's hierarchy of needs, there are five levels of human needs, namely, physiological needs, security needs, belonging needs, respect needs and self-realization needs. Maslow believes that before the physiological needs are met, other needs will not be used as the basis of motivation, because personal survival is the most basic and important consideration.
At present, some schools are seriously in arrears with teachers' salaries, and the arrears are long and large. According to the survey in Henan Province, the arrears of teachers' salaries in this province exceed 200 million yuan, and some places are more than 10 months. These behaviors seriously violated teachers' basic right to exist, greatly hurt teachers' feelings, and more importantly, seriously violated the mandatory provisions of national laws. The fourth paragraph of Article 7 of the Teachers Law of People's Republic of China (PRC) stipulates that teachers have the right to "get paid on time, enjoy the welfare benefits stipulated by the state, and take paid vacations in winter and summer vacations"; Article 30 of the Law on the Promotion of Private Education, which came into effect on September 1 2003, stipulates: "Private schools shall guarantee the salaries and welfare benefits of teaching and administrative staff according to law and pay social insurance premiums for teaching and administrative staff". It is conceivable that if teachers' basic right to subsistence is not guaranteed, how can they be guaranteed to engage in teaching? If normal teaching cannot be guaranteed, how can we ask them to train qualified builders and successors of the socialist cause?
(five) the right to put forward opinions and suggestions on school teaching management.
In school, teachers are the main body engaged in teaching, and the task of education and teaching is completed by teachers; The staff of the school's administrative logistics department serve the teaching. They are not so much managers as service providers. Some school administrative departments put the cart before the horse and put the official standard into practice, which not only refused to adopt teachers' correct opinions and construction, but also dampened teachers' enthusiasm for participating in school democratic management. It should be pointed out that the administrative staff of a school may not know everything about the operation of the school, nor may they have the professional knowledge to manage the school. Teachers are professionals working in the front line of teaching, and some teachers are experts in a certain field. They have a better understanding of the school and have the motivation to manage the school. If these talents are not considered in the decision-making of education, teaching and teaching management, the rationality and legitimacy of school management decisions are incomplete or even wrong to some extent.
Teachers' participation in school management is mainly achieved through teachers' congresses. The fifth paragraph of Article 7 of the Teachers Law stipulates that teachers have the right to "put forward opinions and suggestions on the work of the school's education, teaching, management and education administrative departments, and participate in the democratic management of the school through staff congresses or other forms". The Regulations on the Staff Congress of Colleges and Universities also clearly stipulates that "schools should establish and improve the staff congress system with teachers as the main body and strengthen democratic management and supervision."
At this stage, only public colleges and universities have set up staff congresses, and whether private colleges and universities have set up staff congresses is clearly stipulated. However, the Law on the Promotion of Private Education stipulates that "teachers in private schools have the same legal status as teachers in public schools". Since teachers in public schools have the right to participate in the democratic management of schools in the form of staff congresses, teachers in private schools should also have this right Teachers' participation in school democratic management can not be achieved by individual behavior, but only by forming a certain organization to participate in management can the goal be achieved. Therefore, the author suggests that the law should play a regulatory role in the absence of teaching staff in private schools.
(six) the right to participate in continuing education and training.
Article 7, paragraph 6, of the Teachers Law stipulates that teachers have the right to "participate in advanced studies or other forms of training". The report "Learn to survive-today and tomorrow in the world of education" by UNESCO points out: "We can no longer acquire knowledge once and for all, but need to learn how to build an evolving knowledge system all our lives-learn to survive". As a teacher who teaches and educates people, if you want to survive, you have to keep learning and learn for life. Lifelong learning has become an inevitable requirement of knowledge economy, knowledge society and human development in the 2 1 century. Teachers, in particular, as a special subject, can adapt to the changing situation only by constantly improving their own quality, and can keep pace with the times only by constantly learning and updating their knowledge. Therefore, education administrative departments and schools should actively provide teachers with opportunities for further study or training, and give strong financial support, which is not only the need of school development, but also the legal obligation of school operators.
(1) Learn to Live-Today and Tomorrow of the Education World, Education Science Press.
Second, the legal protection and relief of teachers' rights and interests.
The legitimate rights and interests of teachers are guaranteed by the state's coercive power. Broadly speaking, it is an important aspect of protecting teachers' legitimate rights and interests to strengthen the legislation to protect teachers and make China's education laws more and more complete. At the same time, it is also an important part of protecting teachers' legitimate rights and interests to strengthen social legal publicity and education so that every teacher knows what rights he enjoys and what obligations he undertakes, so as to correctly exercise his rights and consciously perform his obligations. It should be pointed out that protecting the legitimate rights and interests of teachers is the common task of all law enforcement departments. The legal protection of interests includes ex ante legal rules and ex post legal remedies. The rule of law in advance refers to the law as the standard and measure of behavior, which judges and measures the right and wrong of people's behavior, thus affecting the value judgment of the whole society on its own actors; The function of legal relief afterwards is to provide legal compensation for victims whose rights have been damaged, so that the damaged rights can be restored and remedied. Of course, what we want to see is the legal protection of teachers in advance.
In practice, the legal protection of teachers' rights and interests mainly refers to the after-the-fact relief when teachers' rights and interests are illegally infringed, that is, the relevant legal systems and procedures for the law to restore and remedy their rights and interests.
(A) the civil law protection of teachers' rights and interests
Teachers' property rights and personal rights are the key contents of civil law protection in China. In civil law, property right is a kind of property right, which can be divided into two categories: self-property right and other property right Property right is ownership, the right to possess, use, benefit and dispose of one's own property; His real right is the real right of non-property owners to set rights on other people's property. Personal rights refer to civil rights that are inseparable from the person of the civil subject and have no direct property content. According to the nature of rights, personal rights can be divided into personality rights and identity rights. The former mainly refers to the personal right that the right subject is endowed by law to safeguard his own survival and dignity. Such as the teacher's health, reputation, name, etc. ; The latter refers to the personal rights related to the status of civil subject based on certain behaviors and relationships protected by law. Teachers are awarded the honorary title of "National Model Teacher", which is the right of honor related to the right of identity.
When teachers' civil rights are infringed, they can bring the following three kinds of lawsuits according to different situations:
1. Confirm the operation. The action of confirmation is a lawsuit in which teachers ask the court to confirm the ownership, nature, existence and effectiveness of disputed civil rights in accordance with the trial procedure. For example, teachers can only be deprived of the title of "National Excellent Teacher" under the circumstances stipulated by law. If the school deprives teachers of their "honorary title", teachers have the right to ask the court to confirm whether the school's behavior is effective, thus protecting teachers' legitimate honor rights;
2. Payment litigation. The lawsuit of payment is a lawsuit in which teachers, as the subject of civil rights, request the court to force the obligor to perform certain civil payment obligations in accordance with the trial procedure in order to realize their own interests. For example, ask the obligor to pay the arrears of wages. ;
3. Complaints about formation. The lawsuit of formation is a lawsuit in which teachers ask the court to change the existing civil rights and obligations, form new civil rights and obligations, or eliminate an existing civil rights and obligations in accordance with the trial procedure. For example, teachers have the right to claim the authorship of cooperative works when they are published.