| Under the grand background of advancing the modernization of the national governance system and governance capabilities,university governance has become a crucial part of national governance.Through the reform of the educational system and the construction of a modern university system,university governance has important significance and value on fully stimulating the potential of the university and providing talent and intellectual support and technological and humanistic support for the development of the country and society.After more than 70 years of the founding of the People’s Republic of China,China’s university governance has generally gone through a reform process from state regulation to public governance,from a high level of centralization to the combination of "decentralization,management and service",and from government-led to cooperative governance.The international experience of university governance shows that the great development of higher education must have a response and promotion of the rule of law,and be regulated and guaranteed by legal rules and systems.University governance in the new era is aimed at improving governance capabilities and improving governance content,while the key lies in the application of the rule of law thinking and the support of the rule of law capabilities.Modern state governance must coordinate with the modern rule of law.Most of the legal problems in the field of higher education in China are problems of administrative law.From the essence of law,university governance is a process that provides and guarantees the rule of law for the knowledge production,knowledge dissemination and knowledge transformation of universities.In this process,governance includes the control of state power and public power in higher education.and regulate during operation.Under the state management model,education administration in the field of higher education is the most important legal relationship,which means the state administrative agency executes the law in order to administrate the university management,and the relationship it formed should belong to the category of administrative law.Under the model of state governance,higher education is a basic public service that the government needs to provide.Universities have obtained the public power of education through legal authorization or administrative delegation under the reform of “decentralization,management and service”,and impact the basic rights of teacher and student to a substantial extend.Regulating the educational administrative power and the public power of universities,and responding to the rights demands of teacher and student are the legal basis for administrative law to intervene in university governance.The basic principles of administrative law have a strong guidance and universality for university governance.It is necessary to incorporate university governance into the theoretical coordinators of administrative law.The concept of governance has entered the field of higher education,and posed a major challenge to the theory of administrative law in higher education.University governance involves the legal and regulation system of higher education,educational administrative behavior,the protection of teacher and student’ rights and the resolution of educational disputes.It puts forward very different legal requirements on the allocation of state administrative power and social public power,the protection of the rights of universities and their teachers and students,and the operation of public power and its supporting relief mechanisms,which are far from the legal requirements of traditional administrative law.First of all,university governance expands the connotation of administrative legal relations,extends the relationship between administrative actions of administrative agencies and universities to the relationship of administrative legal relations,and at the same time breaks through the limitations of the "special power relationship" theory and incorporates the protection of basic rights of teachers and students of universities in to the scope of adjustment of administrative law.Secondly,the normative basis of university governance breaks through the existing legal source system of administrative law,and incorporates the internal university regulation system led by the university constitution into legal source system according to the rule of "soft law is also law".Thirdly,new administrative tools such as administrative planning,administrative guidance,university evaluation,administrative agreements,and school-running standards adopted in the course of university governance exhibit characteristics that are quite different from traditional administrative licensing,administrative compulsion,and administrative penalties.These new administrative actions show flexible features such as strong guidance,cooperation and evaluation.Finally,university governance also challenges traditional administrative remedies.For governance subjects outside the government,soft law outside the national law,and flexible administrative behaviors in the field of higher education,the relevant governance subjects,their responsibilities for flexible administrative behavior,and the relief of rights needs to be re-established and rearranged.University governance is the result of the evolution of public administration,from a single national education administration to multiple co-governance.It moves from the organized activity of the state to co-organized and coordinated of the state and society on higher education affairs,while emphasizing on the cooperation and participation of multiple governance subjects.Under the current legal framework,administrative agencies that exercise administrative power,universities that exercise public power in education,and social organizations that undertake the transfer of government functions or independently exercise public power,together constitute a governance body with Chinese characteristics.From the perspective of the structure of university external governance,China is moving towards a government-university-cooperative public governance.For administrative agencies,the compulsion of administrative actions has been further weakened,and administrative authority has shifted from administrative examination and approval and administrative penalty to administrative planning and guidance,and from management to public services.From the perspective of the university internal governance structure,the objects of university administrations have shifted from people to cooperative partners,whom are the objects of power transfer,sharing and cooperation,so as to emphasize the legitimacy of internal behavior.The goal of the rule of law in the internal and external governance of the university should be to ensure the efficient and fair exercise of the state administrative power and the social administrative power,while at the same time control the exercise of power by the rule of law.At the legal source level,the university constitution as the regulative carrier of university autonomy is an important reference for university governance.It supplements the legal source of traditional administrative law,and regulates the university’s internal regulatory system.From the two dimensions of soft law’s formal standards and substantive standards,the university constitution has typical soft law attributes.From the perspective of legal status,university constitutions play a pivotal role in the realization and protection of the basic rights of universities,teachers and students.Not only can the university constitutions concretize the basic rights of universities,teachers and students that are specified by the hard law system,but they can also be effectively supplemental and personalize the concepts of those basic rights.The legal effect of the university constitution comes from legislative recognition,which means the autonomy of university must be running within the scope of legal permission.It obtains legal effect through the statutory procedure of filing and review by the administrative agency,and has applicable value in administrative law enforcement and judicial review.Soft law is also a law.Under current construction on the rule of law and university governance,it is firmly believed that integrating university constitutions and university internal regulations into the track of the rule of law is the right move to take.The way of university governance embodies the new concept of administrative law focusing on the administrative process and the realization of administrative tasks.Higher education takes universities,teachers and students as its core.The choice of university governance methods emphasizes on the democracy and consultation and flexibility of administrative behavior,and reflects its humane thoughtfulness and consideration,and thus stimulates the initiative of teachers and students to achieve the ultimate goals of higher education.Under the governance model,educational administrative behaviors are more non-mandatory,instructive,cooperative,and stimulating.Flexible administrative behaviors such as educational administrative planning,educational administrative guidance,educational administrative contracts,and educational administrative rewards have become primary methods of university governance.This is an inevitable requirement for the government to effectively transform its functions in higher education and promote the comprehensive management of the country by rule of law.Flexible educational administrative behavior also involves the application of administrative public power.In order to protect the legitimate rights and interests of people,flexible administrative behavior must be included in the scope of legality review and restricted and regulated by means of legal regulation.University teachers and students are the major participants in university governance.The protection of the basic rights of those two parties reflects the level and ability of university governance.At the same time,the rights protection demands of teachers and students are also the social basis for improving the overall university governance.The requirements for the protection of the rights of teachers and students in universities in China are constantly improving,and the standards of protection will continue to advance from the formal rule of law to the substantial rule of law.China has extended amount of state and local legislative and regulative documents,university constitutions and university internal documents,however from the perspective of system design and legal protection,the protection of the rights of higher education teachers needs to be further strengthened,as well as the protection of academic freedom,democratic participation,and material security.In the system of university governance,university students have the dual status of citizen and educatees.The political rights,personal rights,and property rights of university students should be ensured,and improper requirements shall be excluded from university rules and regulations in accordance with the basic citizen rights and legality standards.The educate rights needs to be comprehensively considered using external legal provisions and university internal governance.The university ’s autonomy in running the school shall be respected,and disputes in matters such as student admission,examination,penalty,dropout,graduation and degree conferral shall be resolved following proper legal due process,principle of proportionality,and principle of legal reservation.A comprehensive university governance system generally includes the functions of conflict prevention and dispute resolution,and a diversified dispute resolution mechanism needs to be established.Judging from the existing cases,the disputes in university governance mainly include students,teachers,teaching assistants and other parties;from the content of such cases,they involve matters such as personal rights,property rights,and protection of educational rights.China’s existing university governance dispute resolution mechanism can be further optimized.On the one hand,judicial review can be used as the final method of dispute resolution in the field of higher education,while improving the quality of judicial review in the field of higher education,and conducting overall legality reviews of the cases,and the approach needs to be shifted from formal review to substantive review.On the other hand,the timing on resolving disputes in universities needs to be moved to an earlier point,so that a large number of disputes can be ressloved as university internal settlement,in-system resolution,or pre-litigation settlement,and a diversified dispute resolution mechanism can be formed that integrate administrative appeals,administrative review and judicial review. |
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