Research On Legal Issues Of The Dropout About Non-Government Schools

Since the early1980s，privately-run schools are revived after years of neglecting.Private education promotion law passed in December2002.Private education promotion law in December2002and regulations for theimplementation of private education promotion law are passed, changing the state oflawlessness,accelerating the development of private education.However,some privately-runschools are in dire straits,even bankruptcy for various reasons after the rapid developmentof20years.The alteration and withdrawal mechanism about privately-run schools shouldexplicitly be established in “National medium and long-term educational reform anddevelopment program”(2010-2012).Therefore, how to establish and perfect environmentrelatively legal systems of withdrawing have become an urgently problem, which needsstudying and resolving.There are no appropriate system response both the theory and practive in privateeducation, comparing with private schools having entered the era of “crisis” or “knockedout.” Privately-run schools of the special legal subjects are always at the edge of theacademic world and have already passed into silence.Based on this, as the starting point ofresearch private-run schools which are the special legal subjects,I mainly researches severalproblems of the legal character and the function of privately-run schools, the legal theoryfoundation of quitting,the stereotype,the legal regulation both bankruptcy and no-bankruptcyand the structuring of the main law systems and so on. Besides the introduction, this thesisincludes six chapters:Chapter I is entitled Overview of the Privately-run Schools, which is the generallysummary and carding to the Privately-run schools and the basis of further research. Question1is the definition and types of the privately-run schools. The following views are putforward by the author that the name of privately-run schools can not be abolishedto,displaced by private schools and defined as narrowed meaning and widenedmeaning.There are two key criteria defined the privately-run school, the conduct subject andthe sources of other funding.At present,the privately-run schools mainly include a separateorganization with a single owner, the joint-stock management, non-public enterprise investment, state-owned enterprises investment, runed by social organizations, sponsored bythe public of privately-run schools, transformed from public schools, rolled over adevelopment,the running of schools by non-governmental sectors and the Sino-foreigncooperative education. Question2is the law statues of privately-run schools. Severaltheories are evolved including administrative legal person,social organizations,foundation,public welfare or non-profit legal person and nonprofit organizations(the thirdsection).Apart from the specially legal systems of privately-run schools, the system ofclassification of legal person should also be constructed in China’s future Civil Code in orderto define the legal nature and status of privately-run schools.Firstly, the basic classificationof legal system’s about public or private legal person and association and foundation shouldbe recognized and inherited in Civil Law countries. Secondly,the different legal nature andstatus should be identified for privately-run schools, based on public or private legal personand the premise of association and foundation. Question3is the reconstruction of the legalperson of privately-run schools in private law context. There exist many drawbacks inlegislation. Firstly, it is different to subsume privately-run schools for the classification oflegal person in Civil Code. Secondly, the concept of people-run enterprise units is not thestrictly legal category. Thirdly,the location of nonprofit legal person limits the developmentof privately-run schools. On these grounds, private schools in China are characterized byinvestment,rather than denotement and we should divide private schools into profitable andunprofitable legal person, establish and improve the relative legal systems.Chapter two is entitled “Theoretical Discussion of the Dropout of Privately-runSchools”.In this chapter, some key lexicons involved in are claimed from a legalstandpoint.Secondly, the theory foundation for private schools’ quit are illustrated,that is,themarket failure theory, competitive advantage theory and systematic transitional theory. Lastly,make a summary of inherent reasons of quit,that is,the investment risk, the property rightsfailure and the school corporate governance structure imbalance.The third chapter is “The Stereotype Study of the Dropout of privately-run schools.”Firstly,stereotype,stereotype features and important impact on theory and practice have beenintroduced in this chapter. Secondly, this part objectively analyzed the main expression ofprivate schools’ in China,that is,lacking of stereotype thought,incomplete rules and regulationboth the theory and practive. Lastly, stereotype research has been conducted with the help ofstereotype though in which the dropout of privately-run schools are divided into voluntary or passivity dropout according to the intention of buying out, bankruptcy or no-bankruptcydropout in accordance with applicable law and profit or no-profit dropout according towhether privately-run schools belong to profit or no-profit legal person.Chapter four mainly concerns the legal regulation of the dropout of privately-runschools in a bankruptcy case, which is the emphasis of study. In this chapter several problemsare mainly exposed. Firstly, the study of bankruptcy ability of privately-run schools. Giventhe privately-run school the ability to bankruptcy not only fits a new trend of theinternational legislation about bankruptcy,but also it does not interfere with the publicwelfare and the ability to bankruptcy has been admitted, in a manner, in our countrycorrelation legislation.After all, privately-run schools which differs with enterprise legalpersons, these problems both the legal nature and the property right of corporation ofprivately-run schools will become the important aspects of clarifying where it can’t beadjusted by special laws. The second component is about application of law problem of thebankruptcy liquidation of privately-run schools.This part chiefly studies some proceduralproblems concerning applicants, institute conditions, bankruptcy reorganization andreconciliation and so on and many hypostatic issues regarding discharge sequence,eliminateadvantageous position and allocation of the residue of estate. The third problem is the exit ofnon-governmental schools and the protection of students right to education. The problem isdiscussed guarding the protection of students right to education and some legislationsuggestions proposed that how to protect students’rights and interests in a bankruptcy case.The proposed legislation suggestions includes speeding up to effective protection of theinterests of students,establishing the credit recognized mutually between schools beestablished to realize academic cohesion and protect student right to education and setting upa reserve fund or insurance system to protect the right of relative property of students.Chapter five mainly concerns the legal regulation of the dropout of privately-runschools in a non-bankruptcy case,in which these are discussed under three headings based onthe dropout by merging. The first problem is the specification about consolidation and relatedconcepts,including consolidation,acquisition,merger.The second problem is the research onmerge program.The author carries on comparative analysis the legislation and regulation suchas USA, Japan, and other countries on private schools consolidation,proposes the constructionof reasonable legal procedure by reference to the The Corporations Law and othercountries’relative laws.The procedure mainly contain eight steps:⑴defining the consolidation solution by schools planning to consolidate, entered into the consolidation contract;⑵Theconsolidation solution and contract are discussed and passed by the council and the board ofprivately-run schools;⑶approved by the original reviewing and approving agencies;⑷giving a notice or announcement to creditors;⑸make liquidation in accordance with law;⑹dealing with relative matters about the key stakeholders;⑺settling debts and the residue ofestate;⑻dealing with the relevant procedures.The third problem is the protection the interestof creditors in consolidation. The problem mainly br studied on legal theoryfoundation,content and means of protecting the interest of creditor.As the basic legalprinciple,it embodies of the principle of fairness on the law,maintenances transaction securityand substantiate the stakeholder theory. Several protective contents are mainly consisted ofrights to be informed(It is a kind of the information disclosure obligation, being referenced toprivately-run schools), opposition and damage compensation claims. These rights can beachieved by the general law protection through establishing the corresponding liability systemwhich aims at privately-run schools failed to meet their obligations, and summarizewithstanding system about schools’ merger. These rights can be achieved by prearrangedcontract to those victims for the consolidation in which the rights,the obligations and severalliability are stipulated under autonomy.Chapter six is entitled “The Structuring of the Main law systems of the Dropout ofPrivately-run Schools”, which is the core of the subject and the focal point of this thesis.Itconsists of four parts.1. Classification system on privately-run schools that is a prerequisiteof retreating legal system. To establish and create a good system environment,the part is, forprofit and no-profit privately-run schools from idea aspect,governmental level andsystematic aspect.2.The property right of privately-run schools that is a key of retreatinglegal system. Firstly, the author think, The legal nature of property right of privately-runschools should be clearly defined.In essence,as a special corporation, the legal nature ofproperty right of privately-run schools is the juridical person properly on account of thecharacteristic by diversity of investment. At the same time, the juridical person properly ofprivately-run schools is circumscribed. Secondly, different property rights should bedistinguished rationally on the basis of profoundly understanding the nature of property rightof privately-run schools. In addition,legal ways to protect the right of property of privately-run schools should be perfected, that is to define the ownership of property right of privately-run schools,explicit the regulation subjects’ legal liability which are responsible to assets supervision,meet and respect the relative rights of the investors and exhibitors and perfect thedispute resolving and legal relief mechanisms.3.Intensive protecting to the rights andinterests of stakeholders,which is the core of retreating legal system. Fully understandingstakeholders’ appeals of privately-run schools,especially the core and importantstakeholders’, we should do a very reasonable adjustment to the conflicts and appeals amongvarious interest groups. To the contributive persons of profit privately-run schools,we shouldstress the protection to investors’ rights of self-interest (such as a fair return right,the sharetransfer right and the right of division of property) To the non-profit privately-runschools,we should construct the system prohibiting for self-interesting,limit businessactivities of nonprofit organizations, strengthen the liability of director an so on to protect thelawful rights and interests of the investors.4.The dissolution system and the liquidationsystem of privately-run schools,which is the guarantee of retreating legal system. The mainproblems,at present,is short of the dissolution system and the liquidation system completecontent and normalized procedure. So, one is to set up modern due process ideas andconsummate the procedures of liquidation, the two is to intensify the governmentintervention in the whole process of liquidation.the three is to perfect the selection system ofliquidators,the four is to definite liquidators’ associated rights.As well as, to definite the dutiesand responsibilities of the obligor of liquidation to create the conditions for the dropout ofprivately-run schools.