On The Administrative Legal Relation Between Government And Public Schools

How to establish the administrative legal relation between government and public schools is one of critical questions in reforming the educational administrative system in China. The current theoretical study in this field, however, has not provided a systematic answer to it. It is therefore necessary to undertake a serious study on this legal relation, including the basic theory, the governmental power to manage public schools, and the way to exercise the power. This paper discusses the legal relation mainly from the following aspects:Chapter one sets out to talk about the basic theory of the administrative legal relation between government and public schools in China. Firstly, through a brief review on the history of the relation between government and public schools, the paper analyzes the rule and features of the relation. It points out that the legal status of public schools is the center of the relation. Secondly, according to the Education Law of China, this chapter argues that schools are provided as legal persons. Public schools are thus the independent subjects in the administrative law. This provision should be obeyed and be effectively implemented in practice. Thirdly, this chapter discusses the nature and feature of this legal relation between government and public schools. It maintains this relation in law is external, but in practice it is internal.Chapter two deals with the theoretical background of the legal relation, mainly including the theory of government and market economy, the good governance theory, the rule of law, and the educational theory. It claims that neither government nor the market is omnipotent. Optimizing their separate functions is the key to make them supplemented each other. The good governance theory reveals that there exists room for government to reform. The separation of power, participation in decision making, and flexible managing are indispensable ways to behave government power and to realize good governance. The rule of law theory demonstrates that educational administration must be strictly in accordance with law. The educational theory shows that governmental power has its limitation in the educational field. These four types of theory make for a basis of building a rational relation between government and public schools.Chapter three studies the contents of the legal relation. It argues that the role of government in this relation is limited. Public schools are set up by government. On the other hand, government shall keep itself from interfering with the educational affairs. And even if interference is necessary under a certain circumstance, this interference shall adopt a legal way. However, government should play an important part in such areas: fostering and protecting educational equality, regulating schools'future development, providing basic schooling rules and institutions, and supervising the educational affairs.This paper further analyzes the allocation of governmental power in schooling at length.Chapter four mainly copes with the means of using governmental power to manage public schools. Firstly, it admits that government in doing administrative actions has a limited liberty to choose administrative methods. However, these methods should not be conflict with law, and by-laws, regulations as well. It should respect the general legal principles. Secondly, it justifies the necessity of reforming the current educational administrative methods in China. Finally, it argues that in the educational field, the coercive action must be confined to an appropriate scope. Transparency in educational administration should be effectively realized and participation in decision making should be expanded as much as possible.The final part summarizes the whole paper, putting forward certain suggestions on how to realize China's rule of law in the relation between government and public schools.