Constitutional Review Of Higher Schools' Regulations

As the social entity with public power, institutions of higher education have strong self-governance right. Through establishing rules to administrate students, institutions should extremely ensure legal rights of students. However, students'legal rights are often infringed by the rules for lacking in constitutional regulating. Therefore, judicial review should be implemented to ensure constitutional rights of students. The thesis will regularize the status of institutions of higher education in law, analyze law feature of the rules, acknowledge judicial review system, analyze the reason about judicial review of the rules, and then come up with concrete assumption of judicial review system towards the rules.Studying the question of judicial review to the rules made by institutions of higher education, firstly, the status and feature of institutions and their rules should be clarified, which is the precondition of why the rules should be judicially reviewed and how the rules are reviewed. Institutions in China don't possess complete status as administrative subject, yet they are entitled with certain administrative management rights and as the public power entity with strong self-governance, they can establish a series of administrative rules. Therefore, they have double statuses in the area of public law and private law as the public legal entity. The double statuses lead to multiple features in law of rules made by institutions. The conduct of establishing the rules is abstract. As the development and extension of legal system in China, the rules not only are a kind of self-governance but also belong to normalized files under regulations. The rules'power originates from authorization of laws and regulations or is established by their internal members through agreement, but the power cannot surpass certain limitations, namely, they cannot surpass authorization, but should conform to laws and accept supervision and review. Institutions of higher education manage internal affairs through establishing rules, which opposes to students'benefits. A refined rule made by institutions is in order to ensure legal rights of students and conform to the constitution. However, in recent years, some rules made by institutions in China appear to violate basic principles of the constitution and infringe basic rights of students, yet existing judicial relief approaches cannot give well protection to students'basic rights. In order to effectively protect students'constitutional rights and promote the system of running institutions according to law, judicial review to the rules made by institutions of higher education should be operated.Finally, the primary structure and assumption of judicial review to the rules are put forward from three sides of review premise, review mode and review principle. Review premise includes perfection of students'right claim and other relief measures; review mode is to set up constitutional court to carry out judicial review; review principle includes hierarchy effectiveness principle, regular legal procedure principle, review exception principle and social benefit principle, etc.