A,The details of the case and discuss

In 1999 January 29 day, the plaintiff Qi Yuling to infringe the right of name and the right to education on the grounds, in Shandong Province, Zaozhuang City People's court filed a lawsuit against Chen Xiaoqi, the father of Chen Xiaoqi Chen Kezheng and the Jining City, Shandong Province, Shandong Business School eighth middle school of Tengzhou City, Shandong Province, Tengzhou City Board of education. The reasons are as follows: in 1990 the plaintiff sued Qi Yuling participate in the senior high school entrance examination, was admitted to Jining business school for the 90 accounting class committee, but the plaintiff in the eighth middle school of Tengzhou city in after receiving admission notice, it directly to the Chen Xiaoqi and the plaintiff. Chen Xiaoqi then masquerading the name in the school of accounting class until graduation, was assigned to work in a bank. Until early 1999, the plaintiff learned that he had been under 10 years. Consider the plaintiff, the defendant violated its name right and the right to receive education, request compensation for economic loss of 160000 yuan and the spirit of the loss of 400000 yuan.

In addition to the fact that the plaintiff claims, the court also found, in 1990, the defendant Chen Xiaoqi get admission notice, fails to hold the ticket for admission registration. In 1991, Chen father made the examination table in the Education Commission and Tengzhou eight (cover board seal) and term evaluation table (photo with school seal), graduated in 1993 with a file will file the above-mentioned two table swap, to enter the bank.

The first instance court in adjudicating cases identified: the name rights had been violated, Chen Xiaoqi and Chen father bear primary responsibility, the other defendants also should assume responsibility. The right to education of the plaintiff is the category of general personality right, the evidence that the plaintiff to give up this right, infringement could not be established. The court: the defendant Chen Xiaoqi to stop the plaintiff name infringement, a plaintiff apology and compensation for spiritual damages according to their respective share of 35000 fee.

The Qi Yuling verdict of the first trial, appeal to the Shandong Provincial Higher People's court, reason is its right to education has been infringed, shall receive compensation. The Shandong high court to the Supreme People's court approved the request, [1].8 month 23 days, the Shandong high court according to approved, according to the "constitution" of 46 judgment: defendant Chen Xiaoqi to stop the Qi Yuling name infringement; apologize to Qi Yuling apology, Chen Xiaoqi, Chen Kezheng, Jining business school, Tengzhou eight, Tengzhou Education Commission; Qi Yuling by education rights are violated the direct economic losses caused by 7000 yuan by Chen Xiaoqi and Chen Kezheng compensation, Jining business school, Tengzhou school, Tengzhou Education Commission are jointly and severally liable; Qi Yuling by education rights being violated the indirect economic loss caused by the loss of Chen Xiaoqi, Chen Kezheng compensation, Jining business school, Tengzhou school, Tengzhou Education Commission are jointly and severally liable; Chen, Xiao Qi, Chen Kezheng, Jining business school, Tengzhou eight, Tengzhou Education Commission Qi Yuling compensation for spiritual damage compensation costs 50000 yuan.

After the judgment of the case, has been widespread concern in the circles of theory and practice. As the main enabler to the judgment, judge of the Supreme People's court gives the justification cited constitutional adjudication: "the right of citizens to education is a kind of constitution stipulates and not specific for common law" on the right "... The right to education of the case is difficult to contain the theory of civil law rights, obviously belong to the constitution basic right of citizens "[2]" right to education as a concept of law, belongs to the category of constitutional law, it is general provisions in the constitution of our country, such as the article forty-sixth of the constitution, citizens of the people's Republic of China 'have the right and obligation to education'. The concept of the theory of civil law has no right to education, civil legislation does not stipulate the right of education." [3]

However, the explanation for a civil rights legal tendency and immediately by the theoretical circles retort. Obviously, in the civil law theory and civil law has not stipulated not, does not mean that it is not the civil rights. Some scholars in the provision of special "right of education advocated non constitution cannot respond to" discuss the nature of the right to education, refuting negative general personality right, said [4], that "the court in judicial adjudication, the creative education right frame for the meaning to the modern civil law of personality right, then why not", and the China court trial practice before doing justification. [5] the above practices such as further deduction, will lead to the "constitutional right down" [6]. more people think that the consequences of "constitutional private law", the state power into the private life, "the constitution directly is dangerous [7]. about constitutional lawsuit to the rule", some scholars have pointed out, "'common law can't fully embody the constitution so there are gaps' sense' and the judicature of constitution ', the real cause loss of this proposition will or shadowing.... True 'Constitution', is based on the constitutional ruling by the constitutional dispute "[8]. and other scholars clearly," between the constitution litigation is not usually two citizens, it generally refers to the relationship between the state and citizens "[9]. time, harsh criticism of the constitution judicature cautious praise and on the grounds of decision the combination, on the case review is Public opinions are divergent. [10]

Case discussion questions on the right to education decision, the focus can be summed up in three interconnected: 1, in the case of the right to education is a right in public law or private law property - rights; if 2, the referee will guide the public power intervention in private life consequences; 3, whether the judicial referee such the case beyond its own limitations. Open problems, the two or three, four part will be discussed.

Two, the nature of the right to education

Discussion on various occasions, in this case, the plaintiff has ignored the content too, right to education is limited by the nature of the concept of law circles, ignoring the real issue is not surprising.

From the point of view of the plaintiff's appeal: the plaintiff damages content, and not just lost the opportunity to go to school, there are a series of benefits resulting loss, such as health costs, city residence, job opportunities and so on.

The Supreme Court in the above facts distinguish the right to a name, the right to education and the right of labor and Employment: "in this case, Chen actually has violated Qi Yuling's right of name, the right to education and the right of labor and employment in three kinds of rights, the Supreme People's court from the essence of the case of Qi Yuling, that the main infringement is the citizens' right to education, a means of name right infringement is violation of the right to education, labor and employment rights are infringed the right to education of the consequences". [11] although no written judgment, the above reasoning and analysis or represent the general understanding of the court. The judge did not give a convincing justification for the right to education and the right of labor and employment discrimination in this paper. As a fact as everyone knows, once students enter colleges, generally can successfully get the degree certificate [12]; and obtain the degree itself means the city accounts, some high income jobs and access to "national cadre" identity. In this case, the defendant Chen Xiaoqi impostor after school successfully gained a diploma, and then enter the bank, and automatic acquisition of city residence. The plaintiff was contrasted with the plaintiff was not obtained: Business School opportunity, answer read a year; to enter the education quality and employment prospects are far less occupation school business school; to solve the account, the plaintiff to the local government to pay a substantial amount of city hold the fee; the plaintiff after graduation to become one of the workers, in 1999 the unemployment. After losing access to education, employment and a series of incidental interest since cannot realize, how to become an independent right, the judge did not answer.

On the right to education involved in the case, if the employment and a series of fringe benefits are collectively referred to as the right of labor and employment, the judge will seek explanation for the damage to the right to education (individual to school classes right) appears to have consequences, which it would be awkward to disclose.

Income account and work, the city is relatively high as additional benefits of education, the reasons are complex. Accounts are rooted in the difference between urban and rural areas, and this difference can be accepted (bear) [13] lies in the flow channel limited also exist between urban and rural areas, mainly through the exam. If the difference between urban and rural areas is acceptable, then to the farmer, country gives a test in the city student, not only is not a bad thing, but a way to change the fate of the children of farmers. So, the account becomes attached to the education of interests in our society ingrained. Similarly, can be described as "cadres" identity.

The plaintiff was not clear, but the compensation account, identity, job loss of interest appeal is implied in some reasonable basis, namely above all is to pass the exam due. The plaintiff is passed the national exam gained the right to education, so hope to get compensation through litigation, is actually the various rights and interests gained by examination.

To test for the means of distribution of social resources, has a long history in china. Sui and Tang Dynasties, as a basic work of the Chinese Empire, official selection is carried out through the imperial examination. Today's education and examination system and the imperial examination of many similar: an important social resource in the ruling power, position, wealth of ancient, in today's higher living standards, better opportunities for development - are using the test to distribution. The ancient imperial examination is related to social stability, if the fairness of imperial examination can not be guaranteed, is tantamount to block the realization of equal way, every time, will breed a large-scale "violent struggle for equal action" [14]. so justice research into the basic pillar of social stability, safeguard the public interest requirements become. Ancient rulers attached great importance to its justice, pay the bureaucracy setting, supervision cost and severely punish failure inspection officials cost [15]. the same reason, the contemporary China society and country to test, the degree of attention to the school enrollment, destroying justice emphasis is nothing less than the ancient difference: from institutional settings to the formal and informal system reflects the effectiveness of the security [16]

According to the classification of the public law and private law since Rome law, provisions of the state public service as public law, the provisions of law of personal interests. Ancient Rome belongs to public law contents of government, management of public property, religious cults and officials election; a private law content marriage, family, debt, debt and inheritance. [17] and because of a variety of factors, China's traditional society, security in accordance with the examination result justice to recruit candidates examination system, is not only relates to the school and the student both sides. The principle of balance, the examination system undoubtedly should belong to public law [18]

From the empirical perspective, the school is not in our purely a private subject, but the government authorized the dual identity of authorities and private legal person. Relates to education, schools and education greatly small laws, rules and regulations on treatment failure examination, enrollment, admission of justice. Schools and educational administrative departments conferred by law supervision, processing power of [19], is also a must for them in line with the conditions of the candidates and the graduate certificate of obligation. If the rulers of ancient security examination fair just ruler "nepotism" long-term move, or say to his grace, the emperor has no obligation to the people responsible, a basic performance and progress of the society is "the exercise of power must undertake responsibility" principle. School education is conferred by law, supervision and verification of the authority, citizen because of its failure to exercise the power of damaged, can certainly claim.

In short, the right to receive education is national rights through allocation of education resources examination. On the basis of the right to education claim, containing [20] public demands put forward the subject of public power; at the same time, non repudiation, right to education is also a private [21]. according to the free development of individual, we can roughly be the plaintiff damages claim is decomposed into: the plaintiff asked to assume the defendant of father Chen Xiaoqi, is due to the take another's place by counterfeiting acts and shall bear the legal liabilities of the plaintiff's claim; Shandong province Jining city business school, Eighth Middle School of Tengzhou City, Tengzhou City Board of education for public law liability, but because of its outstanding obligations of [22]. Chen Fu in 1991 made the examination table in the Education Commission and Tengzhou eight (cover board seal) and term evaluation table (photo with school chapter), and the business school to receive Chen Xiaoqi until graduation did not find sufficient proof of it, not the responsibility of supervision, inspection.

Thus, in the second section, some question about the legal circle can be answered: both public law, there is no so-called "constitutional private law": "the constitutional rights" "fear is impossible.

Three, the private subject constitution duties - "welfare rights" problem

Reply of the Supreme Court, Shandong high court, and the judge later issued a "statement of reason", vague based schools and Education Commission to assume liability to pay compensation, which is a big regret. The Supreme Court will belong to the basic rights of the right to education of [23], but on "fundamental rights" actual refers to unspecified.

According to the discussion in the second part, the judgment still belongs to the Judicial Restriction on the public power, is not on private entities directly imposed constitutional obligations. However, in view of the private subject attribute of the school, the decision in the case if the orientation of the country on private enforcement? Especially with regard to this case is a civil action, in accordance with the provisions of the law, should be the subject to solve disputes between private. If the right to education is a fundamental right, means to provide educational services will be subject to obligations of a party. As the private subject school decision by the state power to force is reasonable, whether this means that the state intervention into the private domain?

Maybe this is some scholars worry about "why the constitutional private law". It should be pointed out, the right to education is not in the classical political philosophy called "fundamental rights". Together with the work, travel, rest and other rights, it is questioned as possible and liberal thinkers stretching fundamental rights against [24]. in the classical liberalism constitutional rights, only the "negative" can be called the constitutional rights, such as property, expression and freedom of the press, freedom of religious belief. The constitutional responsibilities is the country - the only body has the ability to destroy these basic rights. As a "night watchman" countries do not participate in private life, only to ensure equal opportunities for everyone.

However, it is equal, the welfare and rights can be established reason. Has been in most countries including China signed the "economic, social and Cultural Rights Convention", defined the "food, clothing and housing rights" (section11.1). In 1948 the "Universal Declaration of human rights", in addition to emphasis on Civil and political rights, but also relates to the economic, social and cultural rights. As of twenty-second announced: "everyone, as a member of society, has the right to enjoy the right to social security, through national effort and international cooperation and in accordance with the organization and resources required for its implementation, dignity and free development of the economic, social and cultural rights." Article twenty-fifth announced that everyone enjoys keeping personal or family "minimum living level right". In 1966 the UN General Assembly through the "economic, social and Cultural Rights Convention" preface that, "only in the creation of the people can enjoy their economic, social and cultural rights, as to its citizens and political rights condition, can realize the free people enjoy freedom from fear and want the ideal." It is said that economic social and cultural rights is necessary to achieve equality.

Liberal thinkers response is fundamentally denied the national action "positive right" or "welfare rights" as the basic rights of [25]. Freedman has cited a simple example: "if I have this sense of access to food" right ", then someone must bear the obligation to provide food. So who is he? If MS Alexander, isn't that she will become my slave? The "right" to "poor" does not play any role. Unless the rights and forced others to Ms. Alexander that qualify for food provides food combination, power, their "rights" is meaningless." [26] liberal thinkers thought, concept of "welfare" right must have an inherent inconsistency, because not everyone can get preferential treatment, or welfare rights itself violated the principle of equality.

However, "everyone has the right to equal treatment" of "equality" in what is, the welfare state's supporters asked. Support the welfare rights "does not equal" is a basic presupposition, is the same rights for different position (economic) significance is not the same person. Beggars and billionaires like enjoy luxury club consumer rights, but what does this mean for him? Or we can follow Buchanan, north of ideas, look from the angle of efficiency. First, any right has come at a cost: Professor Sunstein of University of Chicago law school mentioned in "the cost of rights", even those considered "gifted" liberty, property rights also need the government's expenditure. Then, whether to investigate what kind of rights of the implementation of the maximum efficiency, or from the beginning of the "violation of the equal right principle" a contemptuous disregard those rights?

Of course, support the welfare rights people will admit, equality is not equal to the average - average means power directly the distribution of personal wealth and opportunities. So, this is the only difference and welfare right amount or a different quality? Liberals will question, welfare rights if defined as a limit "loss rather than supplement", it should be in what degree, in what way, who decides? Such equality, whether it is possible to rely on the procedures to ensure that, will be like George. Orwell wrote in the "animal farm" in " all animal are equal, but some are more equal than other animal animal"?

Because the definition relates to fundamental rights, equality in the discussion of this case is very important. The debate between the beneficial to equality of path is different understanding, what is the corruption by easy to state power distribution of some important resources, or by the private cooperation to solve this problem. If we admit that countries should assume certain duties of care, means for countries require private subject bear the constitutional obligations. Liberals must admit - though unwillingly - as a matter of fact, the country has been "home" of many such work, and private entities undertake such obligations It is often seen. Request the judicial organ overthrowing its legitimacy, difficulty is too big. If the courts must deal with such disputes, only based on the idea of welfare rights can we find the suitable method.

One thing to note is that the above discussion, if not combined with the situation of our country, the problem of our country the right to education will be a value is not too large. In the special circumstances of our country with the right to education, including accounts of employment benefits, in contrast, is the lack of farmers and other lower people free development rights. We can get inspiration from Mr. He Huaihong describes the imperial examination system: "the biggest political opportunity equality does not mean that the actual political status and equal rights. The social composition of ruling class can be continuously from the civilians, but not necessarily so as to achieve an equal society. Equality of civilians and the social structure of the ruling class social components are two different things....... Rule layer in the traditional China to lower open at the same time, this class is always stands tall in the lower layer above the [27]. if the so-called "right to education is built on inequality and free social arrangements based on [28], also can be identified as the basic rights, how to construct its rationality in law, worth pondering.

Four, the judicial role

The court in this case is whether the difficulties faced, finds that the case the plaintiff's rights in public law or private law rights are rights, are not in the judicial system, the court under the treatment of [29]. structure today satisfactory in "in bold breakthrough traditional ideas in the constitutional judicature in China on the court's courage and determination." [30] expression containing, is the court is not satisfied with the court now up work, promote judicial independence, so that law can play a greater role in social change desire.

Court action led to the dual concerns here: one, the court is obscuring the true meaning of the Constitution? Two, whether the court has the suspicion of the power?

Some scholars have pointed out, "the only fully reflect the provisions in the 'common law can't so there are gaps' sense' justice 'and the constitution, lost the real cause of this proposition will or shadowing." Identify the case cited constitutional judicialization of constitution obscured the true meaning of constitutional judicature, to add a presupposition, as the author writes: "the real ` constitution ', is to rule on the constitutionality of constitutional disputes." [31]

The questions mentioned above, there are two points need to be clarified: the first one is about the current situation of our country, the constitutional disputes real "(" judicial review of abstract administrative act is not as easily) court can intervene; two is only limited to the constitution judicialization of constitution of traditional dispute, in the modern social welfare country is popular, it seems really covered the constitution of the true meaning of [32]

This raises the problem of judicial authority. Scholars reflected here worry, is the choice of the Court seems to go on the draw further apart and the constitutional concept of road. Ever since Montesquieu put forward the theory of separation of the three powers, the classical constitutional theory has been that the court should stick to the "passive" role, belonging to the legislative and administrative affairs to pursue own subtle criterion [33]. in this kind of case, the court if the direct interference of resource allocation state behavior, whether too active and ultra vires?

In the allocation of educational resources, we can find a precedent. For example, in America, there is a kind of case is called corrective action (affirmative action) case. [34], 1978 "University of California school board v. Bakke case" case become milepost type in the field of education, the problem of judgment. The Supreme Court for review of the University of California Davies School of medicine in a special legitimacy for minority nationality students plan. [35] to the decision as a starting point, the equal rights of students in the educational aspects of the case interpretation constantly, so far has an impressive array of content.

Other welfare rights, such as access to basic necessities of life right, in South Africa has been through the court made a useful attempt. Sunstein discusses the Supreme Court decision croup case [36] (Grootboom Case): 900 live in the lack of electricity and other necessities of allas Martin (Wallacedene) the plaintiff unable to bear the local poor living conditions, moved to a private ownership of land. The owner of the land requires the plaintiff to leave, and to the official application eviction order. But the plaintiffs said nowhere to go but refused to leave. Finally the plaintiff was forced evictions, residence, property in this process have been destroyed. The plaintiff had to return to the living simple huts in Wolasiding. The plaintiff argues that the constitutional rights are violated, filed a lawsuit to court and. The court's decision is in violation of constitutional government, in this case, violated the constitutional rights of the people enjoy home. Although the government has to solve the residence country plan, but failed to create security those in need of housing can live in a transitional home, according to the court against the government.

The judicial authorities in the case have been greatly taken traditional fields, to review the government's administrative plan is reasonable, this if it is in the America is frightful to the ear. What is the reason? Sunstein is concluded, "in a broader sense, shelter and food and other constitutional rights are those maybe because of the lack of organization and political status and unable to use political means to protect their people to protect." Eisenstein saw the real question is, in the degree of political participation is not high, lack of democracy make the legislation, administrative areas reflect public opinion, judicial cannot take negative attitude.

From the analysis we can see that the Eisenstein, because the appearance of the welfare state, the government collected a large amount of resources, separation of three rights tradition seems to have been not able to form of separation of powers. In the democratic participation is not high, judicial angle is even more important in the face of some problems, the court will be in a certain extent replaced the Parliament and government become the public opinion expression in place.

So, the judicial authority seems to worry is superfluous. If many constitutional state is still in the exploration of new balance between the three rights, what reason to question the attempt in a process of reform of the judicial organs to actively seek a bigger role?

Five, postscript

The right to receive education is a constitutional right, the court will decide the case cited the Constitution? This paper starts from the public law nature of the right to education, and expounds the nature of taking private in welfare state under the background of the obligation, to give the court between dealing with such cases - private subject dispute - the constitution apply a rational basis.

However, when we look back to the case, had to admit that its significance is still unknown: no doubt, judicial protection in the case of the right to education embodies the important value of [37]. social equality but as the right to receive education welfare rights should not only contain the results determined in accordance with the procedures and standards of right, otherwise the court became the administrative decree accessible assistance; more important is a challenge to the existing distribution rights (such as the Qingdao three candidates questioned the Ministry of education to determine in the provinces to determine the rationality of different fraction line a lawyer sued the Ministry of education [38]). The real test will be whether the court in accordance with the constitution to realize the control of the legislative and administrative power. In this sense, that the case is not a constitutional litigation is justified.

Constitutional litigation is a chance to change the role of the Supreme Court judicial embarrassment, semi official nature article also strongly reflects this intention. Lost in a will of constitutional litigation opportunity into a reality, the court finally caught the "right to education" this straw, I do not know how fate will be?

Reference.

[1] 2001 year in August 13th, the Supreme People's Court published the interpretation "2001" 25 "on the infringing upon the right of personal name means to infringe on the constitutional protection of citizen fundamental right to education should bear civil liability replied", pointed out: "Chen Xiaoqi to infringe the right of name means on Qi Yuling, according to the constitution, education basic rights have enjoyed, and caused the damage, they shall bear the corresponding civil liabilities".

[2] , the Supreme People's court people a court judge how "judicialization of constitution and its significance from the Supreme People's court a talk about" today, the people's court report, August 13, 2001.

The nature and the basic rights of citizens of a tribunal of the Supreme People's court and [3] song "spring rain the legal thinking is the case of Qi Yuling, the constitutional protection of the right to education of legal research", public network load) special constitutional judicialization (a).

[4] Mr. Shen: "began to constitutional rule era? - "first case of doubt" constitution ", the legal information network.

[5] "in the judicial practice in the past, choice of court of common law judicial interpretation is a way to make up for the deficiency, the specific rules, even in the name of the judicial interpretation of the law making. The above mentioned the right to education into the alternatives of the civil law system, is a continuation of this methodology." Before the citation, section three.

[6] "China constitutional perspective different from the west, we focus on the fundamental and effect of constitutional essence of class, of the content, but not too much emphasis on" the fundamental characteristics of restricting government power ". Therefore, firstly, our constitution is a clear national basic system and basic tasks of the declaration, and it doesn't matter between national institutions emphasize the adjustment is just like western style and national institutions and citizens. So, private law is not excluded from the constitution adjustment range, in addition to Article thirty-sixth (freedom of Religion) and fortieth (freedom of communication, communication secret) outside the direct clear person is also the basic rights of the obligor, many other basic rights are the actual words implied against private subject. "Downgrade" basic rights as private rights, the rights which can be called "basic" become chaotic unknown. It is difficult to explain, why private and others letters constitute a violation of fundamental rights, and murder, robbery does not constitute (provisions of our constitutional rights and no right to life and property.). Moreover, this weakens the core function of the constitution to restrict the state power to a certain extent, public law dilute basic rights." Peng Yanan "constitutional constraints? - the "constitution" the first case ", special load public network constitution judicature (a).

[7] citation, section four or five.

[8] Zhang Zhiming: "justice" in the constitution, special load public network constitution judicature (a).

Said [9] of the Peking University professor Jiang Mingan interview. See 'constitutional judicialization four talk about', Southern Weekend administrative law forum, see the topic of public network constitution judicature (a).

See topic [10] public network judicialization of constitution and "Legal Daily" September 16, 2001 "Qi Yuling case: scholars".

[11], the Supreme People's court people a court judge song "judicialization of constitution and its significance from the Supreme People's court a talk about" today, the people's court report, August 13, 2001.

[12] students cannot obtain the diploma, there are two cases, one is subject to administrative sanctions; two drop out. Subject to administrative punishment, only occur in violation of laws or regulations and in severe cases; and school drop out or permitted, unless there is one of the nine cases stipulated in article thirty-first the State Education Commission promulgated the "ordinary secondary school student management regulations". These circumstances is not large proportion. In fact, occupation technical school, colleges and universities are similar to this.

[13] farmers although many people, but because I've been to prohibit the establishment of peasant association organizations like, not just their own interests of mutual communication and consensus, which requires countries to improve their lives. The lack of democratic tradition and community organizations jointly led to the oppressed. But the press has a limit, that when all the people had, without the need to communicate with each other, there is a consensus among the farmers would, is to overthrow the government. The term that uses game theory, this consensus is an accumulation point (focus point). No matter how powerful forces, will be of no avail in the tens of millions of farmers. So the government's strategy is "not too" - just a so-called "penalty solid not waste, but to light" is.

[14] see He Huaihong "election" in "social 'election' society" concept, the first part first chapter 'equality and modernity', the second chapter 'China ancient equality' section, load of PKU He Huaihong personal home page.

[15] famous Qing Shunzhi Ding You examination in case of Shuntian examiner, Li Zhenye, Zhang Wopu et al. "All the vertical cut, had not, parents and brothers wife all flow acts Shang Yang Bao", amounting to more than 100 people involved in the case of confiscation exile; Jiangnan official Fang You, Qian Kaizong was immediately method, the "family, wife, the officer," another eighteen people have been "accountability board forty, property, into the officer, parents and brothers wife be exiled to Guta sanctions" Heilongjiang; deal with the case of a Xing Department the emperor was not considered good, including the president of Xingbu Toohey, a number of officials have leather to the. From the college entrance examination report "section 05" Chinese.

[16] takes into account the speech, publication has not been fully liberalized, the degree of media attention can also be taken as an indicator: such as the October 23, 1997 "focal interview", to "bait and switch, legal to let" in the title of the show, revealed during Hubei Province Tongcheng County Primary Enrollment Office deputy director Xiong Yun crane in office, by modifying the score test, take another's place by counterfeiting and other despicable means to undermine the entrance examination. At the beginning of 1999, "Youth Daily" disclosure China two times two University of Shanxi found dozens of fake college students, second days, the newspaper also revealed Jiangxi together more college entrance examination take another's place by counterfeiting event. In 1999 the media reported the two fraud of the South and the north of case shocked the country: Heilongjiang college entrance examination in Wangkui County sixteen identical papers twenty-two people involved in the case, including the deputy magistrate in charge out chairman, deputy director, second principal and classroom teachers "full set of men", major questions; leak occurred in Guangdong South side of the senior high school entrance examination, causing thousand candidates retest. See section fifth of citation.

[17] see week Nan "Rome law", on page 92, commercial press, 2001 edition.

[18] division of public law and private law, can be retrieved from the earliest definition is Rome jurist Urby Ann proposed: "public law relates to the Empire of Rome government, private law relates to the personal interests." (load "digesta" 1, 1, 1, 2) since then, jurists have put forward various criteria such as the division of public law and private law, application, main body, said said nature, philosophy theory, but the discussion involves the interests or the interests of different consequences due to the different is still other theories can not be avoided. Dragon Weiqiu "civil law" see, 6-10. Medicus "the German Civil Law", 11-13.

[19] State Education Commission "provisions" management of general secondary school student second: freshmen registration, the school should be within three months of review in accordance with the provisions of enrollment. Review of qualified, obtain the status. Review after the end, schools will be timely made students register the provincial (autonomous regions, municipalities directly under the central government) departments of education administration and school competent departments for the record. Article third: after review, do not meet the admission conditions, by the school distinction, be. All play favouritism and commit irregularities, whenever you find, once verified, shall cancel the registration, returned to the original area or the original unit. If the case is serious, shall report to the relevant department for serious processing.

[20] imagine, such as in private law, as how to determine the board of education and school obligations? "The general duty of care", or "kind of duty" - it seems absurd?

Development of [21] see the Dragon Weiqiu "civil law" the third chapter six section three, the system of right of personality (309-326 pages), four (two) strategies in China's protection of the right of personality development: should be in accordance with the constitution to create the right of personality (331-340 pages), Chinese legal press, 2001 edition.

[22] the court did not identify an important fact: according to the Convention, the rural household into the city to apply for a new identity card, Chen Xiaoqi for the new account of why not found? How to solve? Qi Yuling himself on the technical and "rural", to re apply for identity cards and residence, cannot be found no account has been moved, why not found? Qi Yuling technical school to apply for registration, the file is how to deal with? Responsible for the supervision and inspection duties of the subject without a obligations.

Reply of the Supreme Court that [23] : "according to the facts of this case, such as Chen Xiaoqi infringement on right of name means on Qi Yuling, according to the constitution, the basic education right enjoyed by". See Note 1

Of every hue [24] "" right ", such as" pond grows spring grass ", the thriving appeared: the right to education, right to work, employment right, right to travel, right to rest, right to abortion, sexual preference right, not full age children right...... And so on, This is not the only one. Analysis of these rights, it is not difficult to find, some are not clear definition is difficult to define, some are contradictory, the more it is some kind of welfare, i.e. it is logically ask others to provide something as a necessary condition. For example, the right to work, there must be people the establishment of enterprises, and the boss has the duty to offer you the job, which can realize the "right to work". But it would be a violation of the freedom of others (the boss), against the equivalence between both sides of contract. What his duty to hire you? In fact, these new "right" unlimited flooding, unlimited expansion of its content, will be the basic freedom weaken the "Declaration of human rights" and the "Declaration of independence" as well as the classical liberal thinkers repeatedly stretched, and the "right" to become an utter lack of substance of meaningless words, and even become a pseudo rights." Chen Kuide: "in the liberal arena", "thoughts" web site (wiapp.myetang.com/sixiang/).

[25] "welfare" is a term, originally is a professor of representative Pigou welfare economic school in the use of "welfare state". Welfare economics in favor of state to allocate some resources, its central claim that countries can sometimes be more efficient than the market distribution, or use of state power to correct market failure. But the last century since the sixty's with the revival of classical liberalism, Buchanan, the North has demonstrated the low efficiency compared with the government agencies of regulation and market, welfare economics advocated by the great challenge.

[26] Freedman: "welfare is a basic human right? "Heart", carrying Freedman heritage "Academy website.

[27] see He Huaihong "social" election fifth chapter 'ancient election brought about social changes' two festival, PKU He Huaihong personal home page load.

[28] professor Zhang Wuchang put forward the concept of "rent dissipation" in the discussion of price controls, that is government forcing leads to inefficient. Similarly, the government spent a huge cost to maintain such a huge exam is natural and reasonable? Also, the examination as the only yardstick "Dissipative" a generation after generation of youth and wisdom, find a better way is not? I do not intend to negate the distribution of education resources of government, led by the government here just to remind: the only way to solve the problem of distribution is not.

[29] China civil, administrative office of clear boundaries, who may enter into the enemy's territory. If in the previous analysis, the case had to be divided into two proceedings, will lead to an already not simple complex problems. Here seems to reflect the characteristics of our country's reform of the so-called "outside the system breakthrough". See Zhang Yu "theory of reform in the past twenty years", Guangming Daily in October 4, 1998.

[30] , the Supreme People's court people a court judge how "judicialization of constitution and its significance from the Supreme People's court a talk about" today, the people's court report, August 13, 2001.

[31] Zhang Zhiming: "justice" in the constitution, special load public network constitution judicature (a).

[32] German jurist Otto. Feng. Meyer said "constitution dies, the administrative law is" widely circulated is clear. See Chen Xinmin "public law": Notes on the first association constitution and administrative law, China University of Political Science and Law in 2001 September edition.

[33] see Hamilton, Jay, Madison the "Federalist Papers" Seventy-eighth articles, 391 pages, the Commercial Press, 1980 June edition.

[34] 1964, American passed the Civil Rights Act (Civil Rights Act), act sixth stipulates the prohibition of racial discrimination content. In September 24, 1965, President Johnson signed executive order 11246, "take corrective action (affirmative action) ensure that applicants regardless of race, color, religion, ethnic problems in getting the work blocked". Since then, in various fields America life, appeared on the "corrective action (affirmative action)" case, no doubt these relates to equal protection case has become a constitutional question to American Supreme court. See Summary of Federal Laws Students Non-Discrimination with Respects to Students

[35] according to this plan, set aside 16 places from 100 enrollment, by a separate committee is responsible for admission from four designated minority groups. A white Alan. Bucky was not accepted admission, despite his test scores higher than the part of the special enrollment plan was accepted admission of candidates. The Supreme Court ruled in the ratio of 5 to 4, the Davies plan would violate the 1964 Civil Rights Act of sixth "". The 5 justices accepting such a principle: a public university can take with racial awareness enrollment plan; racial considerations in itself does not violate the equal protection. However, the 5 justices have racial consciousness on a recruiting plan when through constitutional review did not agree. See the "constitution" the sixth chapter: introduction to America equal protection, Lyle. T. Al Fuson, Jerome. Barron, Thomas. Deans, Liu Ruixiang, Pan Jiabin, Yan Fuxiang, Dong Chengxi, Lin Hong.

[36] Sunstain: Social and Economic Rights? Lessons From South Africa, CHICAGO PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 12. see The Social Science Research Network Electronic Paper Collection:

[37] now for a rural children, want to get freedom development opportunities, the test is almost the only way. This point and the ancient imperial similar. Mr He Huaihong thinks, the development is the ancient social modernity performance. See the first series of He Huaihong "election" the first chapter: social equality and modernity, PKU He Huaihong personal home page load.

[38] Jiang Ping: "the constitutional rights are violated can tell? I feel sure that. Qingdao 3 students sued the Ministry of education, relevant prior to consult my lawyer. This matter after the media reports, many people expressed their support, I think we should tell. Because now the Department of administrative regulations in violation of the constitution is very outstanding. The problem is, now the court can review the administrative regulations and rules,?" See "constitutional judicialization four talk", Southern Weekend administrative law forum, special constitutional judicialization (a).