The Rational Exercise Of Administrative Discretion Power In The Student's Management At College And University

With the improvement of rules of law in our country, university is no more a vacuum of law. Administrative litigation system as a way of right's relief for college students, has not only been advocated by scholars and specialists, but also been confirmed by judicial practice. However, the theoretical basis for the university being as an administrative subject in the administrative law, has been discussed a lot in the academic field. At present, the mainstream point is viewing university as a law and rule authorizing administrative subject or as a public legal person that has a qualification of administrative subject. Obviously, these two theoretical claims both treat university as a part of the national administrative organization, universities ' disability of get rid of the improper interfering of the national administration, is thus against the spirit of university autonomy. Out of the feeling that university should have its autonomy, we regard university as an autonomic organization with decision-making right, the administrative action of student's management at university is a kind of social administration. And social administration should also be restricted by national laws and administrative laws as well. Therefore, university has the qualification of administrative subject, and should be restricted by administrative laws.However, due to the specialization of the student's management at college and university as well as the abstraction of laws, there is a broad administrative discretion power in the student's management. It is necessary for the student's management to have a administrative discretion power, but because there is no relevant restricting mechanism of power, abuse of administrative discretion power exists in the student's management .So, it has a practical meaning to discuss how to exercise rational the administrative discretion power of the student's management at college and university. We believe, strengthening the judicial review of the administrative discretion power is a necessary way of restricting how to exercise the power, but because of the limitation of judicial review, it is not a best way. We should strengthen the inner-control and self-control of the exercise of the administrative discretion power so as to restrict it. Therefore, we attempt to extend college students' awareness of right, using the students' right to restrict the administrative power of university. On one hand, students do have rights, including the substantive rights and procedural rights, which require the student's management should be restricted by the principles of right protection and equal treatment when they exercise the power. On the other hand, due to the way for college students to gain right's relief outside the campus is quite limited, such as the way of judicial review, administrative appeal and administrative reconsideration. We should perfect the way for college students to gain right's relief in the campus, mainly is the complaint system for college students, which can help us to protect the students' right from being invaded because of the administrative discretion power's abuse.