关键词: 强制退学处理, 在学法律关系, 受教育权, 制度审查, 法治化

Abstract:

The handling of compulsory withdrawal from colleges is the behavior of colleges and universities to forcibly terminate the legal relationship of students in school, including disciplinary withdrawal and academic elimination. The legal nature of compulsory withdrawal is a state administrative act, and in the specific type of administrative act, it belongs to the cancellation or abolition of unformatted administrative acts that grant benefits. In view of the fact that the handling of compulsory withdrawal has excessively restricted or even deprived students of their basic rights such as the right to identity and the right to education, the formal legality of the compulsory withdrawal system must follow the principle of legal reservation, the principle of clear norms, and the principle of due process. In terms of substantive rationality, the above should comply with the principle of proportionality, the principle of prohibition of improper connection and the principle of trust protection. Based on the conclusions of the legality and rationality of the system, the legalization of the system should be carried out from four aspects. Specifically, first, the basis for withdrawal should be partly based on the principle of relative legal reservation to assign authority; second, the reasons for withdrawal should be divided into political standards, disciplinary standards and academic standards to be determined separately; third, the withdrawal procedure should be established as an open procedure, hearing procedures and period procedures; fourth, rights relief should be improved and explored in school appeals, administrative reconsideration, judicial litigation and administrative compensation and other systematic remedies.

Key words: compulsory withdrawal, legal relationship in school, right to education, system review, rule of law