--Based on theoretical and practical analysis of the Qi Yuling caseand the Luo Caixia case in China
Constitutional Protection and Judicial Relief for the Right to Education of Chinese Citizens
As educational reform is going forward after our reform and opening up, citizens' the right to education has been deeply extended in terms of connotation and the means of protection and the level of institutionalization have been improved substantially. However, various educational disputes have increasingly emerged in the wake of educational reform. More and more new situations and problems have come up. Especially over the past ten years, some issues on the nature of law, legal basis and judicial relief for the right to education have arisen one after another, typically represented by the Qi Yuling case and the Luo Caixia case. Based on these two cases, the paper attempted to discuss how to strengthen constitutional protection approach for the right to education through improvement on educational dispute litigation and resolution mechanism.
I. Review on approaches to legal protection and judicial relief for the right to education from the Qi Yuling case to the Luo Caixia case
On August 23, 2001, Shandong Provincial Higher People's Court concluded the well-known Qi Yuling case in China. In this case, a judicial interpretation of the Supreme People's Court cited by the court aroused wide public concern--Interpretation (2001) No.25 Official Reply of the Supreme People's Court on Whether the Civil Liabilities Shall Be Borne for the Infringement upon a Citizen's Fundamental Right to Education. As provided in the interpretation, "Since Chen Xiaoqi has infringed Qi Yuling's fundamental right to education provided in and protected by the constitution by means of infringement of the right of name and caused specific damage, Chen Xiaoqi shall bear corresponding civil liabilities".Later, Shandong Provincial Higher People's Court gave a final judgement on the case according to the Official Reply. It was expressly judged, "The appellee Chen Xiaoqi and Chen Kezheng shall compensate Qi Yuling for the direct and indirect economic loss and metal injury arising from the infringement of the right to education, totaling about RMB100,000; the appellees, namely Jining Business School, Tengzhou No.8 High School, Tengzhou Education Commission and the others, shall bear joint and several liabilities for compensation."
It can be seen from the case that whether or not Qi Yuling's appeal for the right to education can obtain the support of the court determines the amount of compensation to be made. According to the comment of a scholar, "Civil action serves as a mean of relief for fundamental rights provided in the constitution. The Official Reply improves and diversifies the judicial protection approaches for the constitutional rights of our citizens. It is of great significance."Certainly, there were some scholars that sharply criticized the judicialization of the constitution from an academic perspective. In their opinions, the constitution is not applicable to the case at all. The judicial application of the constitution misunderstands constitutionally legislative and administrative implementation mechanism. Furthermore, it is prone to causing theoretical confusion over the constitution.
On December 18, 2008, the Supreme People's Court made an announcement, saying "27 judicial interpretations promulgated by the end of 2007 shall be repealed as of December 24, 2008, including the Official Reply of the Supreme People's Court on Whether the Civil Liabilities Shall Be Borne for the Infringement upon a Citizen's Fundamental Right to Education in the Qi Yuling case ". In this regard, scholars pointed out, "The repeal made by the Supreme People's Court is also a judicial interpretation behavior upon functions and powers."Many scholars argued, "The repeal of the Official Reply in the Qi Yuling case can make the application of the constitution back to the path established in the constitution. It also helps courts at different levels to cite the provisions of the constitution accurately."
There is a similar case. In 2004, Wang Jiajun and Luo Caixia, two students of Shaodong County No.1 High School in Hunan Province, sat the National Higher Education Entrance Examination at the same time. Wang Caixia's total scores was 514, while Wang Jiajun's total scores was 335. Wang Zhengrong, the father of Wang Jiajun, acquired the information on Luo Caixia by some ways and forged the transfer certificate of registered permanent residence and other relevant documents. Consequently, Wang Jiajun, under the name of Luo Caixia, was admitted to Guizhou Normal University. In 2008, Wang Jiajun obtained graduation certificate, degree certificate, teaching certificate and other relevant certificates under Luo Caixia's name. In March 2009, Luo Caixia happened to find her ID Card Number was illegally used by another person when she was applying for online banking service. At that time, she was a student of Tianjin Normal University. Later, she took the defendants, including Wang Jiajun, Wang Zhengrong, Shaodong County No.1 High School, Shaodong County Education Commission, Guizhou Normal University, Guiyang Education Bureau, Tang Kunxiong (Former Dean of History and Politics School of the Guizhou Normal University) and other parties concerned to court on the ground that her right of name and right to education were infringed. She requested the court to decree that Wang Jiajun stop infringing her right of name and right to education and compensate her economic loss and mental injury and other defendants bear joint and several liabilities.
On October 26, 2009, the People's Court of Beita District, Shaoyang, Hunan Province passed the judgement of first instance on the Luo Caixia case. Wang Zhengrong, the father of Wang Jiajun and the former policeman of Nonghui County Public Security Bureau (in Hunan Province), was convicted and sentenced to 2 years of imprisonment for forging official documents and certificates. Together with 2-year imprisonment sentence for previous bribery crime, the court sentenced Wang Zhengrong to 4 years of imprisonment as a result of combined punishment for several crimes. On August 13, 2010, the People's Court of Xiqing District, Tianjin, heard the case in Changsha, Hunan Province. With the efforts of the judge, the parties concerned finally reached a mediation agreement in court. Wang Zhengrong agreed to compensate the plaintiff RMB45,000, while the plaintiff agreed to waive other claims. The case came to an end as Luo Caixia and the dependents became reconciled and shook hands with each other.
According to the trials and results of above two cases, there is something in common. Litigants' causes of action in both cases involved the right to education. Both cases proceeded to judicial procedure on the basis of legal proceedings instituted by litigants. More particularly, there were certain differences in the judicial procedure of the two cases. On the one hand, only civil judicial procedure was applied to the Qi Yuling case, while both civil judicial procedure and criminal judicial procedure were applied to the Luo Caixia case; on the other hand, the final resolutions and applied legal basis were different in of the two cases. Fundamentally legal basis applied to the Qi Yuling case was the pertinent provision in the constitution, while the legal basis applied to the Luo Caixia case was the pertinent provision in specific law like the Education Law.
II. Nature of the right to education and legal basis for protection
Infringement of the right to education is one of causes of action in the above two cases. Speaking of whether and how the people's court supports litigants' action for such infringement, the first problem to be solved is the nature of the right to education. Some questions as to whether the right to education belongs to public rights or private rights and whether it belongs to constitutional rights or civil rights have been in controversy for a long time. The nature of the right to education hasn't been defined clearly. If the right to education is defined according to public rights, the subject of the right would be citizens and, thus, the subject of duty would be the state. In such case, the state must play an active role in guaranteeing the realization of the right of citizens as fully reflected by current compulsory education system. However, with the deepening of educational reform, the subject of education has represented a trend of diversified development. The right to education has shown more and more nature of private rights. So, in some people's view, this right has been largely classified into the range of private rights.
Jurisprudential basis: education providers and education receivers are different stakeholders on the same legal platform and undoubtedly, they enjoy independent legal personality and equal legal status. Those in favor of this view point out that the right to education in the range of private rights is essentially the right of equality and the right of freedom and actually it is an important civil right of citizens. Nevertheless, our existing civil rights exclude the right to education as the right of personality from the perspective of legalism. In fact, after hearing the Qi Yuling case, Zhaozhuang Intermediate People's Court ruled, "The right to education claimed by the Plaintiff Qi Yuling belongs to a general right of personality. It is the freedom of citizen to diversify and develop self-personality." Subsequently, however, according to the relevant spirit of the Interpretation (2001) No.25 Official Reply of the Supreme People's Court, Shandong Higher People's Court in the second instance ruled, "Qi Yuling's claim that the appellees be liable for infringement of her right to education shall be supported on justified ground." Theoretical disputes and cognitive divergences herein are clear and need to be clarified urgently.
As explicitly stipulated in the Article 46 of the current Constitution of the People's Republic of China, "Citizens of the People's Republic of China shall have the right and obligation to receive education." As provided in the Article 9 of the Education Law of the People''s Republic of China adopted at the Third Session of the Eighth Standing Committee of the National People's Congress on March 18, 1995 and effective as of September 1, 1995, "Citizens of the People''s Republic of China shall have the right and obligation to receive education. All citizens, regardless of ethnic group, race, sex, occupation, property status or religious belief, shall enjoy equal opportunities for education according to law." According to the Article 36 of the law, "Education receivers shall enjoy equal rights in going to school, entering higher school, employment and etc." Moreover, pursuant to the Article 77 of the law, "If anyone practices favouritism or other irregularities in enrolling students or other trainees, he shall be ordered by the relevant administrative department of education to dismiss the students or trainees; the leading persons directly in charge and other persons directly responsible for it shall be given administrative sanctions according to the law; if the case constitutes a crime, the offender shall be investigated for criminal responsibility according to the law." The Article 80 provides, "The relevant administrative department of education shall nullify the academic degree certificates, educational qualification certificates or other education certificates that are issued in violation of the provisions of this Law, and shall order their return or confiscation; the unlawful gains, if any, shall be confiscated; if the case is serious, the institution concerned shall be disqualified for conferring the certificates." The Article 81 also provides, "If anyone, in violation of the provisions of this Law, infringes upon the lawful rights and interests of teachers, educatees or schools or other institutions of education, thus causing losses or damage, he shall bear civil liabilities according to the law." Furthermore, the Article 9 of the Higher Education Law clearly stipulates, "Citizens have the right to higher education according to law."
Specifically, the right to education is included in social rights. The government shall be responsible for the realization of the right to education. The constitution fundamentally guarantees the right to education. Common laws, including the Education Law, specify concrete ways how the constitution guarantees the realization of the right to education through specific provisions. Therefore, the questions such as whether the right to education belongs to public rights or private rights and whether it belongs to constitutional rights or civil rights are not real problems.The problem of education itself is a social problem. As the right to education is an essential social and economic right, the state plays an important role in guaranteeing the realization of the right to right. In essence, the development of education ultimately depends on the level of social development. Social and economic development provides fundamental guarantee for the adequate realization of the right to education. The government of a state must make the greatest efforts to develop economy and to ensure that the right to education is protected to the extent that it is supposed to, and thus, to make the development of education in harmony with the development of society and the state's capacity of fulfilling obligations.
III. Reflection on the application of the constitution in judicial judgements on educational infringement disputes and relevant issues from a jurisprudential perspective
It can be seen from previous discussion that the litigant was infringed in 1900 in the Qi Yuling case while the current Education Law became effective as of September 1, 1995. According to the principle of non-retroactivity, the court should not judge the case on the basis of the Education Law. The right of personality in the civil rights, however, excludes the fundamental right to education. Consequently, the court had to cite the provision in the constitution. As the Luo Caixia case happened after the enactment of the Education Law, the court and relevant divisions heard and judged it in accordance with the pertinent provisions of the Education Law. Apart from other factors, it can be seen from the Luo Caixia case that great progress was made in the approaches to relief for the right to education and in legal basis. Our educational legal department experienced continuous development and improvement.
The Qi Yuling case indicates: the constitution is supposed to be a reliable basis and the last guard line for the realization of fundamental rights when citizens try all other legal means and still fail to get adequate relief in face of the infringement of their right to education. Jurisprudentially, all acts in violation of the constitution shall be subject to constitutionally negative evaluation and liable for such violation. "Although the constitution is the fundamental law of the state, it is a mandatory and binding law applicable in the courts, with the same nature as other laws."The Luo Caixia case shows: if the cause of action is clear and legal basis is adequate, courts shall first consider applicable common laws rather than the constitution as the immediate basis for judging disputes over the infringement of the right to education, avoiding the generalization of constitutional protection of fundamental rights. The question is that constitutional provisions are like the "King Provisions" in the area of the constitution (just like the "principle of good faith"— —the king provisions in civil law). In practice, in light of the characteristics of the constitution, i.e. principled, inadequate with respect to punishment and fundamental, constitutional provisions shouldn't be applied as the foundation of the "right of claim" for the right to education whenever possible. Especially, when common law basis is available, the application of constitutional provisions shall depend on the circumstances, otherwise, the means of constitutional protection for fundamental rights is prone to generalization.From this, it is comprehensible why the Supreme People's Court repealed its previous Official Reply of the Supreme People's Court on Whether the Civil Liabilities Shall Be Borne for the Infringement upon a Citizen's Fundamental Right to Education on December 8, 2008 after the Qi Yuling case.
Moreover, on November 4, 2009, the Supreme People's Court promulgated the Provisions on Citation of Such Normative Legal Documents as Laws and Regulations in the Judgements, regulating the citation of legal basis in criminal, civil and administrative judgements. However, the matters concerning whether the constitution can be cited or not wasn't covered under the provisions. At about the same time, on December 26, 2009 at the Twelfth Session of the Eleventh Standing Committee of the National People's Congress, the scope of tort liabilities for infringing civil rights as set forth in the Article 2 of the Tort Liability Law of the People's Republic of China was adopted, covering the right of life, the right to health and the right of name etc. but not the right to education. In this regard, the author reflected on a further question: the Qi Yuling case and the Luo Caixia case came to end as the judicial procedure was concluded. However, in terms of the litigation and resolution of similar cases and actual results, the approaches to the judicial relief for the right to education weren't improved along with the application of litigation and resolution in the above cases. Pertinent theoretical controversies and challenges in practice weren't evaporated along with the judgements gave by courts.
Undoubtedly, it is essential to seek more appropriate approaches to judicial relief for the right to education because similar cases would arise inevitably in the future. In the author's opinion, as the National People's Congress and its Standing Committee are the special constitutional supervision organ stipulated in our constitution, its interpretations concerning the infringement of the right to education and its definition with respect to pertinent liabilities are certainly in line with the spirit of the constitution. However, these involve some questions, such as how to deal with the cases involving constitutional violation? How judicial organ judges the acts in violation of the constitution. As these questions involve several complex factors, the questions can't be solved in a short time. In view of our status quo, national conditions and system, the author believed, the key to the applicability of judicial means of educational dispute resolution is to develop special educational dispute litigation and resolution mechanism rather than to solve the problem of whether constitutional provisions can be cited in the judgements or not. It is urgent to develop the mechanism step by step by giving consideration to our national condition and system and learning from the practice of other countries.
IV. Development of special educational dispute litigation and resolution mechanism with Chinese characteristics
At present, as China is experiencing a radical social transformation, receiving education has become essential to individuals' survival and development. People are more and more conscious of the subject of education, the right to education and education laws. Meanwhile, as the allocation of educational resources has become increasingly marketized, the subject of education diversified and the legal relationship of education complicated, the status and relation among subjects in traditional education mode are undergoing profound changes. The competition for educational resources is even fierce. The shortage of educational resources is further intensified. Education environment has become more and more complex. Various educational infringement disputes have arisen one after another. The probability of infringement of the right to education is soaring. Citizens' right to education would be very fragile if enough legal bases are not available, especially judicial relief mechanism, regardless of where or how the right to education is infringed.
It is noteworthy that some scholars attempts to borrow ideas from a foreign theory——"Third Party Effect of Fundamental Rights",for the sake of improving our educational dispute litigation and resolution mechanism. Some argued that similar cases can be handled through "administrative litigation with incidental civil action" or "criminal litigation with incidental civil action" in the framework of our current judicial system. As far as the author is concerned, the challenge is more than the emerging problems about the third party effect of fundamental rights which to great extent can be solved through institutional improvement on unconstitutional review and civil legislation.Just as Professor Han Dayuan stated, "When we consider the problem of the third party effect of fundamental rights, bear in mind people-to-people infringement is not subject to the constitution. It is still a fundamental principle of the constitution that infringement of individual rights by private individuals is not the subject matter of constitutional rights.In the sphere of education law, certain "non-civil non-administrative" educational disputes have become a barrier in front of such solution.
In China, more and more experts have realized that current judicial organ and judicial procedure are not enough to deal with the complexity and specialty of educational judgement. To ensure the justice and rationality of our court in hearing education cases, it is necessary to establish a special court of education law as other countries do to make educational judicial organ independent in functions and status.Mo Jihong, a famous expert of the constitutional jurisprudence, also maintained, "We need to establish a special court of education law to resolve the administrative, civil and other cases arising from infringement of the right to education."In this regard, to position and establish an educational judicial organ with Chinese characteristics has become an inevitable problem both in theory and practice.
Looking from the judicial practice in China, some grass-roots people's courts once attempted to establish internal functional organs such as a court of education law or an educational case leading group as early as the beginning of 1990s. However, these organs were dissolved. As the byproduct of reform under specifically historical circumstance, how can we learn from the theory and practice of the court of education law? Should a court of education law be established? With these questions, the author and other members of the subject project group surveyed the first court of education law.The result of the survey revealed: as a court of national judicial body, the court of education law was an internal organ directly responsible for the judicial judgement of educational disputes. In fact, however, the court was not just an internal organ in the judicial body. It also acted as the spokesman of education authorities. Consequently, the organ is of "half administrative half judicial" character. So, the exercise of judicial power can be imaginable. As far as the author is concerned, although the establishment and dissolution of the first court of education law have become a history, it provides precious experience and lesson for us to profoundly review the specific mode of educational judicial organ. Bluntly, the court of education law, as a special historical product, came into being as our educational judicial organ moved towards "independence and specialization". Meanwhile, the court was abandoned because it was not specialized due to administrative dependence. On these grounds, the author got some important inspiration--for our educational judicial mode reform in the future, it is a rational choice to keep the court thoroughly independent, out of administrative dependence, and to gradually set up an educational judicial organ where ordinary judgement is independent.
In particular, the court of education law shall be regarded as an important part of internal organ reform of our courts at different levels. The court shall be composed of a professional judge elected from court structure. The office expense and operating expense shall be included in the budgets of courts at different levels to ensure that the court can independently conduct judgements. Second, the scope of accepting cases shall be circumscribed to ensure the sources of cases, covering all the educational disputes. Meanwhile, it needs to specify what cases are related to education. Unrelated cases shall be excluded from the court of education law to avoid it being overburdened and thus affecting the quality of judgement. In terms of judicial procedure, the practice of other countries can be used for reference. Educational litigation is the optional procedure of education mediation, reconsideration and arbitration etc. Once the final judgement is given, it is binding.Specifically, prior to the promulgation of the educational litigation law,civil litigation procedure is applicable to educational litigation. For the administrative cases where education authorities are a defendant,administrative litigation procedure is applicable. For the cases involving educationally criminal offense, criminal litigation procedure is applicable. Educational liabilities (including the liabilities of administrative organ, judicial organ, education institutions at different levels and individuals in the process of enforcement of education law) needs to be further improved so as to strengthen the implementation of education law and judicial supervision and thus, to ensure the effective implementation of education law and to provide practical approaches to judicial relief for the right to education of citizens.
Qi Yuling, Chen Xiaoqi et al.: Dispute over Infringement of a Citizen's Fundamental Right to Education Protected by the Constitution through Infringement of Right of Name, Gazette of the Supreme People's Court of the People's Republic of China, 2001 (5).
Song Chunyu, Jurisprudential Consideration on Applicability of Constitution in Qi Yuling Case-A Legal Research on Natural of the Right to Education and Protection of Citizens' Fundamental Rights, People's Court Daily, August 13, 2001 (B01)
Xu Chongde, Deng Xianjun: On the Theoretic Misunderstanding of the Judicialization of Constitution, Jurists Review, 2001 (6).
 Deng Xianjun, A Positive Analysis of the Abolishment of the SPC Reply to Qi Yuling Case, Law Science, 2009 (4).
Zhu Fuhui, Rational Evaluation of the Abolishment of the SPC Reply to Qi Yuling Case, Law Science, 2009 (3).
Li Jinggang, Zu Xianhai, Successful Mediation in Luo Caixia Case, People's Court Daily, August 14, 2010 (003).
 Tong Zhiwei, Rights and Wrongs of Judicialization of Constitution, Chinese Lawyer, 2001 (12).
Wang Lei, A New Exploration into of Enforcement of Constitution--several constitutional problems of Qi Yuling Case, Chinese Academy of Social Sciences, 2003 (2).
 The so-called "generalization" means being generalized and less specific. Generalization is a description from a phenomenological perspective. In this paper, the generalization of constitutional protection for the fundamental rights of citizens refers to the legal generalization of the constitution. That is to say, the constitution is used as common laws and prone to replacing the functions of common laws. As far as the author is concerned, the legal generalization of constitutional protection for fundamental rights not only impairs the status and primacy of the constitution as fundamental law, but also undermines the status and dignity of common laws. To avoid such generalization, constitutional supervisory organ shall first judge the legality of cases and then come to the constitutionality of cases when people seek protection and relief for fundamental rights. It is emphasized that only after all the common-law remedies are tried can constitutional remedy be applied.
The Third Party Effect of Fundamental Rights was originated in Germany in the late 1950s.
 Chen Daoying, Qi Qianhong, Further Study on the Effect of Constitution to the Third One--Taking the Analysis of Characteristics of Constitution as Visual Angle, Journal of Henan Administrative Institute of Politics and Law, 2006 (2).
Han Dayuan et al., Comparative Constitutional Law, Higher Education Press, 2003, p.196.
Wang Hongcheng, The Influence and Countermeasure to the Buildup of Educational Legislation in Our Country with Joining WTO, Comparative Education Review, 2003 (4).
Mo Jihong, How Does Constitution Play Its Role in Our Social Life, The First National Top-10 Young and Middle-aged Jurists Forum, Beijing, January 14, 2005.
On March 5, 2008, the author and the members of the of the subject project group visited and survey the Yongding District People's Court in Zhangjiajie, Hunan Province, where the first education court was set up. We retrieved the original documents, consulted case documents kept during the period of existence of the education court and surveyed relevant personnel. With these efforts, we got a comprehensive understanding of the setup, operation and dissolution of the court. Refer to Zhang Yiqing, History, Examination and Enlightenment on the First Educational Court in Our Country, Chinese Social Science Digest, 2009 (7).