| With the continuous development of higher education,the need to reform the education dispute resolution mechanism has become stronger and stronger as the awareness of the subject At present,problems such as the lack of impartiality and professionalism and inefficiency of the dispute resolution mechanism in higher education are becoming more and more prominent.Such innate structural problems based on the administrative dispute mechanism can hardly be improved through acquired reforms,and these structural problems can only be solved by studying new dispute resolution mechanisms.Through a horizontal comparison of foreign higher education dispute resolution mechanisms as well as more mature arbitration mechanisms such as international sports arbitration and domestic civil and commercial arbitration as the main method,and using theories of academic freedom,university autonomy and governance as the theoretical basis,we explore how to establish a higher education arbitration system from the perspectives of the arbitration basis of the arbitration mechanism,the scope of accepted cases and the legal status of arbitration institutions.First of all,the higher education arbitration mechanism needs to solve the structural problems of the existing education dispute resolution mechanism,mainly: the existing higher education dispute resolution mechanism lacks neutrality and is easily caught in the embarrassing situation of "judging itself";the existing mechanism lacks professionalism and is difficult to solve academic problems;the existing mechanism is inefficient,time-consuming and costly,and is not conducive to the protection of students and universities.The existing mechanism is inefficient,time-consuming and costly,and is not conducive to protecting the individual rights and interests of students and teachers.Secondly,the establishment of an arbitration mechanism for higher education requires a certain theoretical basis.On the one hand,arbitration in higher education is conducive to neutral,professional and efficient problem solving.This makes it theoretically justifiable for higher education arbitration to enter the field of university autonomy as an external mechanism,as it protects the academic freedom rights of teachers and students as individuals when dealing with academic disputes.In other words,university autonomy exists to protect academic freedom,so when another mechanism with the function of protecting academic freedom emerges,namely higher education arbitration,university autonomy should make some concessions and give higher education arbitration the space to deal with the space for intra-university disputes.On the other hand,existing higher education disputes are mainly resolved through the administrative or judicial system,which represents the power of the state administration.Arbitration in higher education,as a civil dispute resolution mechanism,is the domain of social administration,which can break the monopoly of state administration in resolving higher education disputes by virtue of its institutional superiority.At the same time,governance theory also provides some theoretical support for higher education as a social administration to deal with higher education disputes.Again,in terms of domestic and international comparison,the higher education dispute resolution methods in the UK and the US can provide reference for the higher education arbitration mechanism in China.In the UK,there exist internal dispute resolution mechanisms such as school committees,supervisory boards and inspectors,and dispute resolution mechanisms of intermediary organisations represented by the Office of the Independent Adjudicator.In the US,there is an arbitration mechanism to deal with disputes between staff and the university,and an academic ombudsman mechanism to defend individual rights and mediate disputes,which is modelled on the Nordic institutions.Finally,higher education mechanisms require specific institutional design in terms of implementation.In terms of the establishment and legal status of educational arbitration institutions,they should first be governed by reference to institutions and then,when the time is ripe,be reformed as donor legal persons of the social service institution type.In terms of the selection of arbitrators,arbitrators should be selected from among professionals in various sectors and should meet both general and professional qualification requirements;when examining academic disputes,arbitrators with specific expertise and a chief arbitrator with extensive legal experience should be appointed to the tribunal.In terms of arbitration agreements,education arbitration should be based on a compulsory education arbitration agreement,which is functionalist and balanced,and is necessary to curb the arbitrary power of universities.In terms of scope,higher education arbitration should be limited to administrative and academic disputes,while other civil and criminal disputes should be excluded as they are not affected by the existing mechanisms,and there should be a ’choose one’ relationship between arbitration and the existing dispute resolution mechanisms.In terms of the legal validity and judicial supervision of arbitral awards,higher education awards take effect when they are made,unless they are set aside for statutory reasons. |
