With the deepening of the reform of the management system of colleges and universities in China and the expansion of the scale of running colleges and universities, there are more and more legal disputes between colleges and students in terms of enrollment, student status management, degree awarding and other violations. This kind of incident happened in famous state-owned universities, and the problems in ordinary universities, especially private universities, are more prominent. How to properly solve this kind of problem deserves attention from all walks of life. Administrative law of educational disputes in private colleges and universities Since the resumption of running schools in the late 1970s, China's private higher education has become an important part of China's higher education, which has made great contributions to the popularization of China's higher education and made remarkable achievements. According to the statistics of national education development in 2007, there are 297 private colleges and universities in China, including more than 40 private undergraduate colleges. Students1630,700, including 2 undergraduates12,000, junior college students1465,438, and 223,600 students in other forms of education. There are 3 18 independent colleges with students1866,200, including undergraduates1656,800, junior college students (209,400) and students in other forms of education (87,000). As a new thing after the reform and opening up, private colleges and universities have many problems to be solved in the development process. Although the promulgation and implementation of "People's Republic of China (PRC) Private Education Promotion Law" and "People's Republic of China (PRC) Private Education Promotion Law Implementation Regulations" and other laws and regulations have solved the problem of equal legal status and management system between teachers and students in private universities and public universities, there are still many places to be improved, and some problems have no sufficient legal basis. For example, in 2006, the diplomas of two private technical colleges in Jiangxi Province were not recognized; In 2007, the Adult Education College of a university in Anhui Province enrolled more students majoring in digital media, which made it impossible for the school to issue digital media professional certificates to these enrolled students. Schools modify their majors without the consent of students ... These educational disputes, if not handled well, will eventually lead to mass vicious incidents. How to define some contradictions in the process of running private colleges and universities and how to define them in the legal relationship of education is worth discussing. Because the legal relationship of education is extremely diverse and complicated, the legal relationship between schools and students is only one of the legal relationships of schools. Under specific circumstances, it may be the educational civil legal relationship, the educational administrative legal relationship, and it is more likely to become the educational litigation legal relationship. To understand this relationship, it is necessary to clarify whether private colleges and universities, like public colleges and universities, also have the main position of administrative law.

I. Administrative Subject Qualifications of Private Colleges and Universities Private colleges and universities refer to educational institutions with higher education held by various social organizations and individual citizens except state organs and state-owned enterprises and institutions. In September, 2003, China officially implemented the Law on the Promotion of Private Education in People's Republic of China (PRC), and the state made a series of clear regulations on private education from the legal point of view. On this basis, private colleges and universities, as an important part of private education in China, also have the same legal status as public colleges and universities, that is, private colleges and universities also have the power to punish, reward and issue graduation certificates to students under the authorization of laws and regulations. Mr. Chu Hongqi believes that there is a difference between the administrative management of schools and the "administrative management" of administrative organs. The former is "private administration", which is the organization and management of internal affairs by general social organizations and has the nature of service; The latter is "public administration", which is the organization and management of public affairs by state administrative departments based on public interests. The right to education exercised by schools is a kind of state power and an integral part of state administrative power. Private colleges and universities, like public colleges and universities, the fundamental purpose of organizing and managing students is to ensure the smooth development of educational activities in order to realize their school-running purpose of cultivating qualified talents for the country and society. Therefore, fundamentally speaking, the school's management of students is for the public interests of the country and society, not for the interests of the school itself. Although the charging system, self-financing and self-financing system and market-oriented operation mechanism of private colleges and universities in the non-compulsory education stage make their career crowned with the characteristics of the industry, China's Education Law and Private Education Promotion Law clearly stipulate that private colleges and universities should not aim at profit, but must aim at social public interests. Therefore, the biggest beneficiary of managing students in private colleges and universities is the society, not the school itself. Schools are the executors and implementers of the current education system, and the implementation of the education system is an important part of China's education administration. In this case, the school and students are in unequal legal status, and the school is the authorized administrative subject, exercising the administrative power entrusted by laws and regulations, such as issuing diplomas to students and punishing students who violate school rules and regulations. Students are administrative counterparts and are bound by school administrative behavior. Therefore, we believe that the student management of private colleges and universities is to implement the national education system. In essence, it is public administration in administrative law.

Second, the current situation of administrative legal relationship between private colleges and students. In the early stage of running a school, private colleges and universities often adopt the practice of "lenient entry and lenient exit" in the relationship with students, and the students' academic performance is audited by the state (self-taught examination, diploma examination, etc.). ), and the management of students is often "seemingly strict, but actually spoiled". In order to solve the survival crisis, some schools even falsely publicize: "All for students, all for students, all for students", which is the enrollment slogan of a private university, but the students have changed it to "All for students' money, all for students' money, all for students' money", which is very ironic. With the support of national policies and the rolling development of private colleges and universities, some private colleges and universities have gradually become bigger and stronger, "entering the national unified recruitment plan and upgrading to undergraduate courses" and become "the same as public colleges and universities", but their initial industrial characteristics have not changed essentially. Examining and positioning the relationship between private universities and college students, we can find that due to the requirements of the industrialization of private universities, more and more internal management problems are exposed, and some practices are questioned not only by students, but also by many scholars. In order to further reveal the essence of the internal relationship between the two sides, it is necessary to make a deep and rational analysis of some phenomena in the management of private colleges and universities. 1. Education and teaching management As a university, its main responsibility is to teach and educate people, so teaching management should be strict. However, private colleges and universities often show great arbitrariness in teaching management and exercise the power of absolute managers. For example, for cheating in exams, many colleges and universities almost invariably severely punish cheating in exams or even deprive students of their school status and refuse to issue diplomas. However, in the specific implementation, it was not seriously implemented. Let's look at the graduation certificate examination of private colleges and universities. The invigilator is exchanged between schools. Because the rate of violation of discipline is to be announced, private colleges and universities form a tacit understanding and cover up each other. Anyone caught cheating in the provincial patrol exam will undoubtedly be severely punished; For those caught cheating by the inter-school invigilator, it is "roll with the punches, roll with the punches." "But in the exams organized by the school itself, different periods, different relationships, different punishments, and ever-changing patterns show the arbitrariness of management. This paper analyzes the causes of this problem. First of all, they lack experience in educational management and don't know how to manage the school scientifically and normatively. More importantly, many founders of colleges and universities set up in March 2009 took the "education industry" as their purpose, and did not manage their schools seriously according to relevant systems based on their own interests. Students who graduate from such private universities will inevitably have the problem that many students have not been recognized by the society after spending huge tuition and living expenses, and they will face discrimination from the starting point. Family expenses and personal efforts are not equal to social recognition. 2. Right to run schools independently The Higher Education Law clearly stipulates that institutions of higher learning (including private institutions of higher learning) have the right to run schools independently according to law and manage independently according to the articles of association. This right of independent management is actually the "discretion" given by law to private schools to handle internal affairs, so as to ensure the realization of their goals. The exercise of these powers, especially in administrative actions such as enrollment, student status management and the issuance of academic certificates, can only and must be carried out in the name of the school. Although the Higher Education Law gives private universities the right to run their own schools, it does not give them the necessary constraints and restrictions, which are highlighted in the following two aspects: First, the abuse of disciplinary power in private universities. Since the management ideas of private colleges and universities have not changed, private colleges and universities can be punished according to their own regulations. Although this kind of punishment seems to conform to the school rules, it may actually violate the superior law. Secondly, whether the school rules of private colleges and universities are based on laws and regulations, and the effective scope of these school rules. In accordance with the procedure of formulating advanced legislation and normative documents, private colleges and universities have the right to formulate their own school rules according to the provisions or authorization of the Higher Education Law and the regulations issued by the Ministry of Education, but their rank and effect are obviously under the laws and regulations. Therefore, it is obviously illegal to make some unrestricted provisions (such as restricting personal rights and qualifications) beyond the superior law when formulating school rules. As an institution with real power, once its school rules deviate from the track of the rule of law, there will be many unfair, unjust, unreasonable and even illegal things. Because the formulation of its rules and regulations is a unilateral act of the school, there is neither the democratic participation of another subject-students, nor the record review and supervision mechanism formulated by the rules and regulations to restrain it, thus expanding its power at will. Some private colleges and universities even insist that their students repeat grades according to the number of 10%, which is even more obvious violation. Private colleges and universities manage schools with rules and regulations that are inherently flawed, which will certainly not play a fair and just role, and the legitimate rights and interests of students will not be effectively guaranteed.

Suggestions and thoughts on coping strategies 1. At present, there are only six laws and more than a dozen administrative regulations on education in China, and the rest are a large number of administrative regulations and other normative documents. When making laws, they often stand on the side of the main body of colleges and universities, but there are many gaps in the protection of the rights of the educated by law. There are also problems in the interpretation of current laws and regulations. Because the education law, higher education law and private education promotion law are mostly general terms, lacking relevant explanations and specific measures, it is easy to cause misunderstanding and inconvenience in practice. Due to the lag of law, private colleges and universities expand their power offside without authorization, which makes all kinds of violations of college students' rights happen frequently. Therefore, as the legislature and the competent department of higher education, we should strengthen legislative construction, do a good job in legal interpretation, pay attention to the balance and consistency of the rights and obligations of colleges and students in form and content, and pay attention to the respect and protection of students' rights. 2. Accelerate the establishment of institutional mechanisms While strengthening legislative construction, the author believes that the improvement of private colleges' own systems and the establishment of internal dispute institutions should also be intensified. (1) Establishment of hearing and appeal mechanism Hearing and appeal system are not only two feasible legal remedies, but also an important form of democratic supervision. In administrative law, hearing means that the administrative organ holds a public hearing attended by interested parties in order to formulate and implement administrative decisions reasonably and effectively, and listens to opinions from all sides extensively to ensure that the administrative decisions of the administrative organ are reasonable and legal. Many existing laws and administrative regulations and many central and local government departments have formulated special hearing procedures or rules and methods, and hearing has been widely used in many fields. Article 27 of the Interim Measures for the Implementation of Educational Administrative Punishment also clearly stipulates that "the parties have the right to a hearing." Article 42 of the Education Law stipulates that "college students have the right to appeal against administrative punishment." In the new "Regulations" formulated by the Ministry of Education in 2005, the complaint system is more fixed and procedural. Article 28 stipulates that "the handling of dropping out of school shall be decided by the president's meeting". "For students who drop out of school, a decision on dropping out of school shall be issued to them and reported to the provincial education administrative department where the school is located for the record. "Article 41 stipulates:" Schools should establish and improve the organizational form of students' participation in democratic management, and support and guarantee students' participation in democratic management in schools according to law. "Article 6 1 stipulates that" if a student disagrees with the disciplinary decision, he may submit a written complaint to the school student complaint handling committee within five working days from the date of receiving the disciplinary decision ",which are the legal basis for establishing the complaint system. Article 60 of the Regulations on the Management of Students in Colleges and Universities requires: "Schools should set up a student complaint handling committee to accept students' complaints about the cancellation of their enrollment, withdrawal from school or violations of discipline and discipline. The student complaint handling Committee shall be composed of the person in charge of the school, the person in charge of the functional department, the teacher representative and the student representative. " There are many problems in private colleges and universities, largely because students in private colleges and universities can't express their demands through legal and normal channels. According to the survey, private colleges and universities rarely set up student appeal committees, and some only have systems that have not been implemented. (2) Establishment of coordination and supervision institutions The legal relationship between schools and students is complex and involves many problems, especially in private colleges and universities. How to solve these problems, foreign advanced practices can provide us with useful reference. Germany is the country of origin that once produced the theory of "special power relations". After years of theoretical development, it began to pay more and more attention to the respect and protection of students' rights. From the early "professor running the school" (that is, the school affairs meeting is organized by the professor, and the professor has absolute power, and the students are only educated and have no status) to the "group university", 1976 promulgated the university procedure law. This law is a basic law applicable to all colleges and universities belonging to all states, which stipulates that college students are one of the necessary groups of university organizations and participate in university autonomy together with other groups, so that the rights of students can be guaranteed by the judiciary. Japan has also introduced the judicial review system when dealing with such issues. Japan's Supreme Court adopted the so-called "partial social theory" in the case of 1977 "Toyama University's refusal of credits", holding that the court can examine part of the relationship between universities and students. While the theory of "power of special relationship" was revised by the civil law system, the countries of common law system also made positive institutional improvements to the governance structure of universities. According to American law, every university is a legal person and supervised by the board of directors. At the same time, there is a unique supervision system design-each university has an off-campus board of directors to supervise school affairs, thus safeguarding the legitimate interests of students. In Britain, the highest authority of universities-the Council and the management and operation institutions-absorb student representatives to meet the requirements of students' participation in democratic management. If we learn from the practice of foreign group universities, the management with students' participation will certainly help to protect the legitimate interests of students to a certain extent. In addition, as a public legal person and a special legal person, under the special administrative and legal relationship, how to strengthen their own legal system construction is particularly critical. At this point, Huazhong University of Science and Technology has established the "Policy and Regulation Department", whose main functions are: under the leadership of the school, cooperating with relevant departments of the school, revising and improving relevant internal policies and regulations, and coordinating and guiding relevant policies and regulations of the industry and logistics departments. From the perspective of colleges and universities, such institutions can not only solve their own legal affairs, make the management of colleges and universities move towards the rule of law, but also provide the necessary institutional guarantee for students to express their demands and safeguard their rights and interests through legal and normal channels.

References:

[1] University Evaluation Research Group of China Alumni Association Network .2008 Evaluation Research Report of Private Universities in China.2008.

[2] Li, Lei Wuming. On the administrative legal relationship between schools and students, 2000.

[3] Chu Hongqi. On the position of schools in administrative legal relations. Educational theory and practice, 2000.

[4] Ding Zhaozeng, Hua Min, Hu Jianzhong. Research on the Administrative Subject Status of Private Colleges [J]. Journal of Fujian University of Political Science and Law, 2006, (1).

[5] Gao Jun. Thinking behind the problem of being sued in colleges and universities (1),