There are different understandings about the legal nature of "quitting school". According to the traditional theory, this kind of management behavior of colleges and universities can belong to the category of special power relations or the field of university autonomy. ① In recent years, there are also judicial precedents that characterize "ordering to quit school" similar to "quitting school" as an internal administrative act of the school. The different understanding of the legal nature of "quitting school" leads to the confusion and arbitrariness in the formulation of rules in colleges and universities, and also has a negative impact on the correct understanding of whether the decision of "quitting school" should be included in the scope of administrative litigation, which needs careful analysis.

The legal nature of "dropping out of school"

From the above analysis, we can see that the school's decision to "drop out" is neither an internal administrative act nor a special power relationship act, and it should not belong to the autonomy of colleges and universities. How to define its legal nature? We believe that it is an administrative action with external handling characteristics, that is, the specific administrative action mentioned in the Administrative Procedure Law, which is feasible in theory and practice.

For a long time, colleges and universities have been positioned as a civil subject. In the General Principles of Civil Law implemented by 1986, universities are classified as people and institutions according to their business activities, and universities participate in social activities as civil subjects. 1The Higher Education Law of People's Republic of China (PRC), which was passed on August 29th, 998, also takes the position of civil law in content. Article 30 of the Law stipulates: "Institutions of higher learning shall obtain legal person status from the date of approval, and the president shall be the legal representative. Institutions of higher learning enjoy civil rights and bear civil responsibilities in civil activities according to law. " However, the legal status of colleges and universities is not limited to civil subjects. Article 8 1 of the People's Republic of China (PRC) Academic Degrees Regulations stipulates: "The bachelor's degree shall be awarded by an institution of higher learning authorized by the State Council; Master's degree and doctoral degree are awarded by institutions of higher learning authorized by the State Council. " Based on the above-mentioned laws and regulations, Chinese universities appear as administrative subjects in degree awarding activities. In the "drop-out" system, once a student is dropped out of school, he will not only lose his school status, but also be unable to obtain a diploma and a degree certificate. In this legal relationship, the status of school and students is not equal, and the school exercises a kind of educational management right, and based on the exercise of this right, it also directly affects the interests of the relative person, that is, the students who have dropped out of school. Therefore, the educational management power exercised by schools should be a kind of public power, and the legal relationship between schools and students should be administrative legal relationship.

However, the law does not explicitly authorize colleges and universities to restrict and deprive students of their right to education by "dropping out". Therefore, from the perspective of authority, the behavior of "dropping out of school" does not fully meet the requirements of specific administrative acts. The author believes that this situation is caused by the imperfect legislative system in China at this stage. If we categorically deny the effectiveness of this behavior, it will cause confusion in school management, but it is even more detrimental to the protection of students' legitimate rights and interests. In this regard, on the one hand, we can adopt more effective means of supervision, standardize the formulation of school rules, provide effective means of relief for the counterpart, and protect the legitimate rights and interests of students from infringement. On the other hand, we should revise and improve the legislation as soon as possible, and fundamentally standardize all kinds of management behaviors in colleges and universities. We will discuss this point below.

Legal relief for "dropping out of school";

Judicial relief should be provided for "dropping out of school" Generally speaking, when citizens think that their legitimate rights and interests have been violated, they can get relief through judicial and non-judicial channels. For students who have been dealt with by dropping out of school, the Regulations on the Management of Students in Colleges and Universities only stipulates non-judicial relief channels, that is, students who have objections to the decision to drop out of school can submit written complaints to the student complaint handling Committee of the school, which will review the complaints made by students; Students who have objections to the review decision may submit a written complaint to the provincial education administrative department where the school is located. There is no clear stipulation on whether students who have been expelled from school have the right to bring a lawsuit to the people's court and seek judicial relief. We believe that it is of great significance to allow students expelled from the school to bring a lawsuit to the court to protect their right to education from illegal infringement and to supervise and standardize the management behavior of the school. First of all, it is necessary for judicial power to intervene in the field of university management. The traditional theories of "university autonomy" and "special power relationship" set a solid firewall for universities to exclude the intervention of judicial power. The so-called university autonomy should be limited to matters related to academic freedom, but under such a slogan, there may be a danger that the power of university autonomy will be abused. In fact, many matters that are too distant or even irrelevant to the core of academic freedom are often advocated by stakeholders as the scope covered by university autonomy. Therefore, when the power of university autonomy evolves into a high privilege, which damages the basic rights of the right counterpart, the limited intervention of the judicial organs becomes a necessity. Similarly, because the special power relationship excludes the application of the administrative principle of rule of law, it has also been comprehensively criticized by modern administrative law. In order to protect human rights and enforce the rule of law, we should not ignore the basic rights of people under special power relations, such as soldiers, civil servants, public schools and students, but should stipulate judicial relief to make them the objects of legal protection. Secondly, the legal nature of "dropping out of school" provides the possibility for judicial review. In the past, when students took the school as the defendant to bring an administrative lawsuit to the court, the court often dismissed the lawsuit on the grounds that it did not fall within the scope of accepting cases stipulated in Article 1 1 of the Administrative Procedure Law. However, through the above analysis, the nature of "dropping out of school" conforms to the connotation of specific administrative acts and should be attributed to the situation of accepting cases stipulated in the eighth paragraph of Article 11 of the Administrative Procedure Law. As some scholars have said: "The punishment of the school, the decision to drop out of school or the decision not to issue a diploma or a degree certificate are all acts with administrative effect. If you are dissatisfied with these decisions, you can completely solve them through administrative reconsideration and administrative litigation, instead of pushing them into the scope of civil litigation or ignoring them. " Thirdly, disputes caused by students' "dropping out of school" appear constantly, and traditional remedies are not enough to protect the legitimate rights and interests of students, which also requires the court to provide judicial remedies according to law. In recent years, disputes between students and schools have continued, mostly around the school's disciplinary decisions such as "quitting school", "ordering to quit school" and "expelling from school". There are many cases of infringing on students' legitimate rights and interests, but it is almost impossible to change the original decision through traditional appeal channels. Providing judicial relief by the court is also the last barrier for students to safeguard their legitimate rights and interests through legal channels. Finally, the existing court cases provide useful practical experience for judicial review. In the case of Tian Yong v. University of Science and Technology Beijing, the people's court established the principle that institutions of higher learning have the qualification of administrative subject. The court held: "The defendant, University of Science and Technology Beijing, is a legal person engaged in higher education, and the plaintiff, Tian Yong, appealed to him to issue graduation certificates and degree certificates precisely because he exercised the administrative power to issue academic certificates and degree certificates to the educated on behalf of the state, and the administrative disputes caused by it can be solved by applying the administrative litigation law." In the subsequent case of Liu v Peking University, this principle was upheld. Although the litigation requirement of these cases is to issue academic certificates or degree certificates, the cause of Tian Yong's lawsuit against Beijing University of Science and Technology is precisely because the school cancelled Tian Yong's student status by "dropping out". Moreover, once students are expelled from school, the inevitable consequence is that they cannot obtain academic certificates and degree certificates. It can be seen that the court should also accept the lawsuit directly filed by students on the grounds that the school decided to "drop out". To sum up, if students have objections to the decision to quit school, they can appeal to the student complaint handling Committee of the school according to the Regulations on the Administration of Students in Colleges and Universities, and the student complaint handling Committee will review the student complaints. Students who still have objections to the review decision may file a written complaint with the provincial education administrative department where the school is located, or file a lawsuit directly, and the lawsuit shall not be based on the complaint. For prosecution, the people's court has no problems such as prescription and jurisdiction after examination. Those who meet the conditions for filing a case shall file a case for trial by an administrative tribunal. Conclusion Although it is beneficial to protect students' legitimate rights and interests to allow administrative litigation against the decision to drop out of colleges and universities, judicial relief is after all an ex post facto relief, which can not fundamentally standardize the management behavior of college students' status, and can be said to be "palliative, not permanent". In order to minimize the infringement of students' legitimate rights in the management of college student status, it is necessary to "establish, reform and abolish" China's higher education legislation. On the one hand, at the level of national legislation, clearly define the management authority of colleges and universities in terms of student identity and degree, and determine the administrative subject qualification of colleges and universities in this management activity. On the other hand, we should reform the current management system of college students' status, abolish various provisions in administrative regulations and university rules that infringe on students' right to education, and improve the credit system.