Abstract: in order to solve the limitation of judicial intervention of university autonomy, internal relations must be in-depth study of university autonomy, the internal structure of University autonomy. The internal structure of university autonomy includes academic freedom (LI) and administrative power (force) of two basic elements, there is a great difference, also has the very strong relationship; both the relationship can be coordinated, can also be a conflict between tension. When the two conflicts, university autonomy is difficult to really protect academic freedom. Show the history of Peking University, the internal structure of university autonomy has undergone a process from equilibrium -- imbalances -- Equilibrium -- the new imbalance -- the new equilibrium -- the new imbalance process. The objective law of development of things from it, the future development of the internal structure of university autonomy should be toward equalization, and rule of law in education is to establish the rules of the game, safeguard fair game, the internal structure of university autonomy to the equalization of the driving force.

"Key words" university autonomy; academic freedom (LI); administrative power (force); education; equalization

A, problems and path analysis

The 1999 Liu Yanwen v. Peking University case, the focus of the Peking University that experienced the vicissitudes of a century elite become again. The case of [1] meaning beyond the case itself, not only caused the reflection of the whole education system, but also on the development of education law has a far-reaching impact. Extensive discussion arising in the case, relationship between judicial review and university autonomy has become one of the focuses. The court of First Instance judgement should be awarded to Liu Yanwen of Peking University doctoral post graduate diploma in two months, and in three months on whether or not to award him a Ph.D. to be re examined. [2] which involves two kinds of University Autonomy: one is by Peking University Ph. D certificate authority; the second is degree by Peking University academic degree evaluation committee power. On the first kind of power is subject to judicial review of the question, did not appear too many different opinions. But about second power is subject to judicial review of the problem, but to stimulate debate. Liu Yanwen in the complaint, had requested the court decision directed Peking University academic degree evaluation committee awarded him the doctoral degree certificate, but in the case of the trial, the agent suggested, to request decision to revoke the decision Peking University academic degree evaluation committee about not awarded a doctoral degree, on his application for re examination and decision. If a paper to PhD level, this problem is of course belongs to the academic recognition and academic discretion. If a claim is established, will inevitably lead to judicial intervention in school educational sovereignty, it was clearly opposed to some scholars. [3], however, "the legitimacy of the independent administrative power, legitimacy is not equal to the concrete administrative action. The independent management rights can be exercised fair, reasonable, there must also be a due process which adapts with it to guarantee." [4] can be said, the court involvement in the university autonomy is be without rebuke, but should be more consideration is precisely the problem -- the court can intervene to what extent? And how to grasp the "degree" of the intervention? This is deficient aspects we have discussed before and research.

To solve this problem, we must sort out the two kinds of relationship. One is the external relations of University autonomy. Also is to sort out the University and the government and other social organizations where boundaries, clarifying the scope of university autonomy and University autonomy. The second is the internal relationship between University autonomy. Also is to sort out the space of university autonomy different matters difference, determine which items will affect the academic freedom, what matters is not directly influence to the academic freedom, and the relationship between the two. These two kinds of relations, internal relations and external relations has decided to produce a linkage effects on the latter, and can adjust and change the internal relationship does not adapt with the. And the latter in efforts to adapt to external relations at the same time, also has a certain independence and have a limited effect on the reverse. In our country, the first relation basically by law to clear the existing laws, but also have relatively clear, to adjust and change depends mainly on the legislative and judicial interpretation, the relevant research has been deeply. And second kinds of relationship basically cannot be clarified by laws, and the existing laws and regulations are not clear inside the school, to adjust depends mainly on the school's activities, relevant research is still very lack. In Liu Yanwen v. north of a case, the two powers are belong to the range of university autonomy, but caused different reactions, the court also gave a different response, also shows that there is difference between the two, the relation belongs to second kinds of relations. Therefore, focusing on the line completely solves the problem of judicial review, this paper will focus on the second kinds of relationships, and put it to understand the inner structure of University autonomy.

The so-called "structure", refers to "the relationship between material system in each element, the mode of interaction." [5] in the dialectics of nature, it with "function", composed of a pair of categories. "The material structural diversity, can be divided into space structure and time structure. The system structure of any specific things are unified space structure and time structure." [6] visible, the internal structure of anything has two dimensions: one is the spatial dimension. As the elements of things inside can be divided, both independence, also have relevance, can show a certain proportion of coexistence and mutual, is a relative stability plane. The second is the time dimension. Reflect the correlation to elements of things inside, can interact with each other, adjust and change, so that the overall structure reflects a change in time and space, is a relative longitudinal instability. This paper is taking Peking University as an example, the internal structure of public higher school autonomy, from the two dimensions of space and time, and then put forward the proposition of the era of autonomy intrinsic structure equalization, and in this proposition, to prove and highlight the education law era significance for University autonomy. Namely, it is to establish the rules of the game, safeguard fair game, the internal structure of university autonomy to the equalization of the driving force.

Two, the relationship between university autonomy and academic freedom

(a) university autonomy and university autonomy

University autonomy is one of the University's long tradition, it can be traced back to the middle ages. "The traditional university, regardless of its funding comes from private donations and subsidies from the state, no matter it is formally approved by the papal bull, a royal charter or national and provincial legislationThe lawIn this paper, guild is the management of their own affairs." [7] its necessity has been generally recognized. However, to define the connotation of university autonomy, academic circles is not completely consistent. Some people think, "actually refers to the internal matters. For example, university organization, university courses, university personnel, the university internal in the use of funds, the development direction of University, university should establish its own standards, to operate, within the framework of the law, the State shall not intervene." [8] thinks, "university autonomy refers to the right of self governance of School of university internal staff, from the University of principals, teachers, students and staff 'governance affairs'" [9] thinks, university autonomy "generally refers to the University shall independently determine its own development goal and plan, and its implementation, uncontrolled and intervention of the government, the church or any other social institutions." [10] also think, university autonomy refers to "university can freely control the school, independent school's internal affairs, minimal accept outside intervention and control." [11]

Although the expression each are not identical, but in general, the autonomy of the university should meet the following three basic requirements: one is the main body of university governance should be the university internal power, can be the principal, teachers and students, but not the countries outside, social or other school organization; two is the university governance is the content of the items inside the University, including free and management of academic autonomy; the three is the goal of governance is to guarantee academic activities only obey the standard of truth, but do not conform to any academic ethics constraint. Needs to be pointed out is, "university autonomy" is not equal to "University autonomy". The former emphasizes an idea and system, and the latter is the important content of this concept and system, is a concentrated expression of it, is the core element of it. The relevance and consistency between the two is a logic. Of course, in a mature society ruled by law, the autonomy of the university will normally be directly reflected in the construction of the legal system of a country, reflects a kind of law of the University autonomy. At this time, "university autonomy" and "university autonomy" can be said that the two sides of one thing "".

In our country, the education system, not a concept of "university autonomy", but a concept of "autonomy". [12] must admit, our university autonomy, is not equal to the traditional western university autonomy, it made a specific era background and specific connotation. However, there existed an internal consistency in function and spirit. "Evolution both showed opposite direction of the situation, purpose is to seek a reasonable 'degree', which makes the relationship between coordination and balance the government and the University and society". [13] visible, both are trying to keep the appropriate autonomous space University, and then in the system to safeguard and realize "the fundamental idea of academic freedom". Based on this, this paper adhering to the spirit of seek common ground while reserving differences, the two time series on "autonomy" and this concept carries on the elaboration and the analysis, to avoid the semantic changes caused by the confusion of thought. Therefore, from the functional sense, the mainland universities in China is actually the law school autonomyLaw firmA university autonomous right endowed by the.

China public university autonomy is mainly embodied in the "Education Law" and "law" in higher education. According to the relevant provisions of the two law, [14] China public university autonomy mainly include the following seven categories:

The 1 recruit: enrollment plan, adjust the proportion of enrollment.

2 Education: subject, professional settings, teaching plans, compiling teaching materials, teaching.

3 scientific research: research, technology development, social services, science and technology exchange and cooperation, the decision to grant degrees.

4 institutional settings, staffing.

5 the teacher management: employment, employment positions, salary adjustment, the implementation of reward or punishment.

6 of the students management: management, the implementation of reward or punishment, award certificate.

7: use of funds management, using a variety of property and funds.

These Provisions show, autonomy, public university in our country has the following three characteristics: one is no professor autonomous body, no student; [15] two is autonomous scope is not limited to academic freedom issues, also includes many internal administrative matters; three is the academic freedom matters and internal administrative matters line is not clear, unified in autonomy, the law did not make a difference between the two, but not to the former focuses. The internal structure of this situation led to autonomy is not clear, the main body is not clear, the scope of judicial review would be difficult to determine.

(two) university autonomy and academic freedom

Academic freedom is the University of the soul and character, this point has been generally recognized. [16] however, the relationship between academic freedom and university autonomy, there is different understanding, there are two representative views. One view is that university autonomy is the reasonable extension of academic freedom and the result of course; another view is that university autonomy is the institutional guarantee of academic freedom. [17]

The first point of the University as an academic freedom organization, the academic freedom of university autonomy as a group. This view is based on the spirit of liberalism, legitimacy of a natural law as the autonomy of the University, the school in the country - two yuan structure of society to form a benign pattern of confrontation and interaction. However, this view of the university autonomy as a group of power, there are three shortcomings: one is to cover the autonomy subject diversification possibilities. In Germany, the main autonomy is Professor, forming a "university autonomy" to teach as the center; and in the American, Council leadership and tenure as distinctive features, main body autonomy, not limited to the professor, the formation of the "Council under the leadership of University autonomy". [18] visible, in school this collective, still exists the autonomy subject difference, and this difference may make for academic freedom guarantee function will be different. Two is the autonomy and academic freedom content exactly the same content. In 1957, Frank (Frankfurter) American Ford judge first proposed the "four basic Liberty University in the Sweezy case". Namely, to determine the appointment of teachers, university itself on academic grounds to determine the course content, teaching method and to decide on academic grounds university itself to determine standards for students on academic grounds of the university itself on academic grounds of the University itself. [19] the four western countries generally believe that is the basic content of academic freedom. But, in fact, western university autonomy content is not limited to these four, and China's Taiwan region and the university autonomy, university autonomy and so. [20] three is a cover up the possibility of inconsistencies between the two. In this view, university autonomy and academic freedom is a consistent, so more autonomy, academic freedom is guaranteed, so that our understanding of cognition into a dead end. In fact, university autonomy and academic freedom is an inconsistency. "An autonomous university teachers can protect academic freedom, who is the subject of the most critical issues of the university autonomy?" [21] if the administrative system of school is the autonomy of the subject, it is also a pressing academic freedom as possible, so that the formation of a tension between university autonomy and academic freedom.

Based on this, the paper more agree with the second kind of knowledge. [22] and consider, as there may be between autonomy and academic freedom in tension, it is necessary to the inner structure of autonomy thoroughly, make appropriate distinction to promote academic freedom and autonomy, and accurate understanding of the two power (right) with different attributes and significance of ruling by law.

Three, the internal structure of University Autonomy

View from space dimension, internal university autonomy, there are different "elements" to a certain extent, independent and separable, their difference is the premise of the formation of the internal structure of; at the same time, these different "elements" also exists between the close relationship between. Two "elements" the differences and relevance of unity together constitute the internal structure of the university autonomy to complete. Of course, the specific matters can not be "elements" one word is simply equal to the University autonomy. It is from "the internal structure of the context of" micro analysis of university autonomy is a kind of logical thinking and semantic tools.

(a) the differences inherent elements of the University Autonomy

In two yuan of state and society, university autonomy is from the government, the church or any other social institutions control and intervention rights, its essence is a kind of negative freedom. In the school's internal relationship, it reflects a kind of self governance in all aspects of school affairs, the general is a kind of active power. However, this difference between the general characteristics and can not cover up its basic content. In the internal structure of university autonomy, on the basis of right (power) in different subjects, and can be divided into the right of academic freedom (LI) and administrative power (force) two elements. [23] called the right of academic freedom, refers to the academic staff independently engaged in academic affairs, academic activities, the development of academic right. The so-called administrative power, refers to the administrative agencies to achieve organizational goals, according to certain articles of association of the University's management ability. [24]

The two element carrying two different forces, there is very obvious difference. In the following six aspects: first, the nature of the two different. No matter to schools outside force, and relative to other forces within the school, the former are reflected as a negative freedom, is a defensive right. The latter is different, with respect to schools outside force, it is a kind of negative freedom, is also a kind of defensive right; but compared to other forces within the school, it is a positive force, even is a kind of intervention of power. Secondly, the two main different. The former as a right, subject is in the university academic staff, including teachers and students, belong to a single individual; [25] the latter as a power, enjoy the subject is the administrative institutions within the University, and belongs to the whole of the collective. Third, the two different purposes. The direct purpose of the former is the pursuit of truth, academic freedom is the pursuit of truth fortress. The direct purpose of the latter is the University of efficient organization, of course, indirect purpose may also include academic freedom, but are not limited to. Fourthly, the characteristics of different. The former as a right, generally do not have the effect of enforcement; the latter is a kind of power, has the effect of mandatory implementation in some cases. Fifth, their contents are different. The main content of the former is the academic affairs, which is the main content of the other affairs of the organization and management of university. The six, meaning the rule of different. The formation of the social relationship is not a legal relationship, only by academic ethics adjustment and restriction; the formation and the latter social relationship is a legal relationship, subject to relevant laws, regulations and the principles of the rule of law adjustment, shall be subject to judicial review.

According to these differences, can be seen: as matters of academic freedom, University Autonomy in China, including the summarized above second and third, also involves fourth, fifth and seventh; matters which embodies the administrative power includes the above induction the first class and the sixth class, also involves fourth, fifth and seventh. That is to say, item fourth class, fifth class and seventh class according to the specific circumstances of, they are the right of academic freedom (LI) and administrative power (force) blend of field, is the two elements interact with each other or confrontation caused by the relevance of the zone. Because of this, it is the judicial review of the pace began to lose. As in the case Liu Yanwen v. north, there is a controversy about whether is Peking University academic degree evaluation committee can be the defendant in administrative litigation? Item [26] which belong to the fourth class, the key to see the exercise of this mechanism is the academic freedom rights or administrative power.

(two) Association of university autonomy intrinsic factor

In the internal structure of university autonomy, the two elements of a different nature, different characteristics, serving different value, causing different rule of law, and thus formed a close association between both the coordination, and tense. Specifically reflected in two aspects: on the one hand is the coordinated relationship between the two. When the administrative authority of the purpose and value of academic freedom is consistent, academic freedom as the center, the academic mechanism as the priority, both as a coordinated development of the association. In this case, the administrative power is a kind of academic freedom. For example, the enrollment work is a kind of administrative power (force). If the enrollment work considering academic factors, carrying out the academic personnel evaluation standards, it will pay more attention to maintain the appropriate scale, to avoid blind expansion out of economic consideration, increase academic staff teaching burden, reduce the quality of teaching, and endanger the academic. On the other hand is the tension between the two conflicts. When the administrative authority of the purpose and value of academic freedom phase deviation, not to the academic center, not to the academic mechanism as a priority, a correlation reflects a kind of tension. In this case, the administrative power could become a pressing academic freedom force. For example, the subject setting is a kind of academic freedom (right), but if these issues by administrative power dominates, it may exist between certain conflicts and tensions. After the reform and opening up, "Peking University in response to the changing needs of society, has increased the intensity of ordinary higher education structure adjustment, continue to maintain and strengthen the basic subjects at the same time, prominent strengthen social need professional personnel training". But "in general, the types and proportions of Applied Science and natural science is less still. This comprehensive development on the subject of Peking University, exchange and integration between disciplines, such as emerging interdisciplinary science create will restrict." [27] visible, this specialty is clearly affected by the external relations, but if does not have a good grasp of academic oriented and other oriented "degree", also will have the adverse effect.

Four changes, the internal structure of the University Autonomy -- Taking Peking University as an example

From the time dimension, the coordination and the tension of two existence of relevance, necessarily implies jointly dominated in the two elements of the field, may with the development of the times through the structural change that go up, As one falls, thus showing a instability. In fact, the internal structure of university autonomy is also due to its instability and experienced a process of change, the western countries, China is no exception. [28] of the Peking University is one of China's most representative institution of higher learning, it has hundred years history, is a microcosm of the history of the Chinese public university, can reflect the change in China in the era of the internal structure of the University autonomy. The following major taking Peking University as an example, to examine the changes of Chinese public university autonomy, inner structure, and further analysis and discussion of its development direction in the future.

In 1898, the predecessor of Peking University -- Jingshi DaXueTang established. But, until Xin Hai revolution, its essence is still a feudal college, rather than the modern sense of the university. As of 1902 11 menstrual approval of the Qing government issued the "imperial imperial academy's charter" of school running program, subjects, curriculum, admissions, graduate, employment, distribution of teachers tutor system and teaching discipline of the detailed provisions. [29] visible, during this period, almost all school events are controlled by the state power, may not have the so-called university autonomy, academic freedom is a luxury. The true university autonomy is formed in the period of the Republic of china.

(a) the beginning of the Republic of China: the initial formation of academic leading structure

Xin Hai after the revolution, the Imperial University was renamed Peking University, some reform also receive a bourgeois democratic nature, establish a certain degree of university autonomy in legislation. 1912 promulgated the "University" provisions of the purpose of university is to "advanced academic Professor, develop shuoxue Hong lumber, should the country needs", embodies the spirit of academic freedom. And the provisions of the University Council, a handle administrative matters, the president is to be elected speaker, Professor, member; a professor will deal with subjects in administrative matters, senior as speaker, professor for undergraduate members. In addition, in 1914 September Hu Renyuan for rectification of the Peking University, carried out a series of measures to expand enrollment, hiring teachers, improve teaching methods, textbook. [30] visible, at the time of university autonomy, Professor played a bigger role, the exercise of administrative power also allows professors to participate in. But after the PKU President Cai Yuanpei in 1917, two yuan structure professor leading more strengthened. Cai Yuanpei clearly put forward the "University, profound knowledge also" concept. Under this guidance, the full implementation of the system of the Council, not a professor may not be elected councillors; the establishment of administrative meeting, members to be master Professor, school administrative power; the establishment of the general affairs office, personnel and financial management of all, to improve school efficiency. [31] visible, in this period, the autonomy of the further development of university. In its internal structure, administrative services to the right of academic freedom and the latter is the dominant, both formed a harmonious relationship, academic freedom has been well publicized. There are many such as Hu Shi and Mr. Liang Shuming two with a countermeasure in philosophy, but mutual respect academic anecdotes. [32]

(two) from 1927 to 1938: academic leading structure of the micro die

After the establishment of Nanjing national government, the centralized intensifies, the strengthening of political intervention, the whole university autonomous space narrowing, but does not change the internal structure of the autonomous right. "1929 national government in July announced" university organization law "," school organization law ", the educational department has announced" Regulations "," University College "and other laws and regulations for, in addition to repeal the board of directors, development, improve the University" to "and" National University Ordinance "basically, and get more strictly enforced." [33]1931 nine. After the one eight incident, the wartime centralized suddenly strengthen, the realization of "theocratic" University, the whole autonomous space will perish.

1938 - 1949: (three) re emergence of academic leading structure

In 1938 April, a temporary retreat to Kunming in Changsha University of Ministry of education of the national government has renamed the southwest United university. The Peking University, Tsinghua University and Nankai University three school formed in China's top universities, has a very important significance in the modern history of education Chinese. In the nine years since, the academic for the internal structure of university autonomy, leading to re established, and obtained the full development. In the southwest of the UN General Assembly, the principal and the Standing Committee is the leading body, but played the most important role is the professor system. "President of the southwest of the UN General Assembly at the time of each school by Professor, Dean of the department chairman, first known as the professor will. Professor in the UN general assembly consists of all professors, associate professor. The professor will be consulting agencies, to listen to the chairman of the Standing Committee work, discuss the major problem for schools, to make recommendations to the Standing Committee or Council, or to discuss matters of their conversation, representative council election. See Synonyms at etc.. The professor will administrative management, the school teaching facilities, discipline development, students have considerable influence and role, embodies the spirit of University professors." [34], for example, in the southwest of the UN General Assembly, the appointment of Professor Dean responsibility, by the Department Director title, with the consent of the Dean, he may appoint professor. "The president and director system must have high academic standing, they decided to hire or retired professor, and Professor grading, will not lead to controversy." [35] also, "represents the instructor will and representatives of the staff and workers, students are required to attend Professor autonomy will be, the Council, participate in the discussion of rights". [36]

Visible, southwest of the UN General Assembly period, because the coordinated relationship between university autonomy internal elements, "on the campus, it (Professor) in the name of Democracy against the side of the dictatorial; outside, it is in the name of academic autonomy against the side of the Kuomintang faction" of education and academic institutions to enter and control. [37], the university autonomy and academic freedom are great publicity. As "the National Southwest Associated University Memorial inscription" set: "the United Nations University for its spirit absorb anything and everything, the transfer time of social atmosphere, the scale of academic freedom in the tree, the Democratic stronghold of foreign title." In 1946 July, southwest of the UN General Assembly to return to the north, three school reconstruction. After the reconstruction of the Peking University, whether internal structure range autonomous space or autonomy, has been difficult to reproduce in the Southwest Associated University period in.

(four) 1949 - 1956: administrative structure following the hardship

The new China after the founding of the PRC, the Communist Party of Chinese strengthened the leadership of school, North China Higher Education Commission set up by 1949, unified implementation of higher education policy and planning guidance, academic improvement and heritage of books management. [38] of the University of the whole autonomous space is very narrow, Peking University is no exception. [39] internal structure in this limited autonomy, administrative power has become a leading. The Ministry of Education issued in 1950 the "Interim Procedures" provisions of the higher school "principal responsibility system" foreign ", he represented the school", "leadership in school (Institute) of all teaching, research and administrative matters." [40] since 1951, in 1952 to carry out the teacher thought reform political movement, weakening their independent personality and academic autonomy, academic freedom is also very weak, lack of security system. Therefore, in this period, university autonomy is very limited. In its internal structure, administrative control of academic freedom and the former is dominant, both formed a relatively tense relationship.

1957 - 1977 (five): the complete lack of space of University Autonomy

After the 1958 "education revolution", stressed that education should be "politics in command". In 1958 September, the CPC Central Committee, the State Council issued the "about the education work instruction", "all the requirements of educational administration and all schools, should be subject to the leadership of the party committee." So far, the autonomy of the University Limited does not exist. At the Peking University, whether matters books, instrument, drug management belongs to administrative power, matters or laboratory work, teaching quality, teachers' speech belongs to the right of academic freedom, to handle by the China Communist through reorganization, transformation of the way of political campaigns. [41] in this period, the complete absence of university autonomy, also does not exist the so-called internal structure.

(six) from 1978 to 1992: the initial development of the executive LED structure

After the reform and open policy, education began to call on the university autonomy, promoted our country, the reform of higher education system, the university autonomy in our country has been gradually expanding. [42] especially in 1985 May, the CPC Central Committee has made "about the reform of the education system decision", clearly put forward to "decentralization, expand the school autonomy". In the process of this reform, academic freedom has been extended, but not constitute the main content. [43] in its internal structure, administrative power to promote the academic freedom right and the former is dominant, which formed a more harmonious relationship. During this period, "the Peking University 'All flowers bloom together., contention of a hundred schools of thought', free and relaxed academic atmosphere, the unprecedented active transformation of scientific research, from basic research, application research to technology development, consulting services, scientific and technological achievements, has produced fruitful results." [44]

(seven) in 1993 - so far: to re adjust the administrative structure

In 1993, the CPC Central Committee, the State Council issued a joint "China education reform and development outline", clearly put forward the establishment of higher school's legal status, the reform of higher education system in China has entered a new stage. Promulgated 1995 "Education Law" is this reform first obtain the legal results. The provisions of article twenty-eighth of the school's nine self sovereignty, the article (eight) is purely academic freedom, and several other is mainly administrative power. And in 1998 promulgated the "Higher Education Act" from the thirty-first to the provisions of article thirty-eighth of the University autonomy. Compared with the "Education Law", its scope has expanded, its internal structure has been adjusted, more pure as matters of academic freedom, matters and pure as administrative power reduction. However, in its internal structure of administrative power, is still dominant, a coordinate and tension in the relationship between administrative power and academic freedom. The [45] that the relationship is necessarily leads to the reform of our higher education more deeply, turn on the intrinsic structure readjustment.

Taking Peking University as an example, the Chinese public university autonomy, the inner structure of the hundred years changes, can be found, the internal structure, public university autonomy in China basically is the academic freedom rights (right) and administrative power (force) two yuan structure composed of. Among them, from the legal terms, second stage and fifth stage of university autonomy has been missing, there is no inherent structure. [46] but, in these stages first, two or three, four, six or seven, the internal structure of university autonomy is not always in a harmonious state, but generally experience a process of equilibrium -- -- -- the new imbalance imbalance in balance -- the new equilibrium -- new imbalance. The first stage is the second stage of the prophase is balanced, unbalanced, the third stage is the equilibrium; the fourth stage is the new imbalance, the sixth stage is the new equilibrium, the seventh stage is the beginning of new imbalances. In fact, the two "elements" of these changes is the university autonomy in internal structure of repeated game. Of course, the external relations of the game space size will ultimately depend on the different period of University autonomy.

Equalization of five, the internal structure of the University Autonomy

The objective law of development of things from it, the future development of the internal structure of the university autonomy should be balanced. This is our decision to deepen the reform of higher education system environment, it is determined by the logic of the University itself. For example, since the beginning of 1998 Peking University proposed to create the goal of a world-class university, and began a series of reform. To achieve this goal, we must follow the logic of the University, the University idea. "The idea of a university is the creation of knowledge, for human knowledge, heritage of human civilization, promote social progress....... This idea is the most important is, university teachers are really special preference, for research and teaching the most creative, most can make original research results of the scholars, and enjoy academic freedom." [47] visible, eliminate the conflict of two factors of internal structure of university autonomy and nervous, to gradually realize the equalization, is the focus of public university internal governance in Chinese is. Of course, the "equilibrium" does not mean to realize the right of academic freedom (LI) and administrative power (force) equivalence, and structure depending on their ability to adapt to the needs of the times, depending on their overall development in harmony can promote the University, is a kind of Ce Junheng; it is the game between [48] result of two powers, is a reasonable balance of individual freedom and administrative efficiency of two kinds of value, is a reasonable allocation of rights and power inherent in the structure, is a kind of structural equilibrium.

(a) the imbalance of the internal structure of the University Autonomy

Equalization must be based on "imbalances" as a precondition. Of course, "imbalances" does not mean that the administrative power is dominant, or is the dominant academic power. In fact, the school and the Faculty Governance model has its advantages and disadvantages, what Dumbledore or disadvantages depending on the time background and the specific conditions. [49] "imbalances" refers to a mode of administrative power (force) and the right of academic freedom (Lev) both sides strength wide gap, causes the administrative power intervening in academic matters too much, damage or academic freedom; academic power in administrative matters too much damage, administrative efficiency. The two elements of the proportion, can not meet the requirements of the times.

At present, imbalance in China's university autonomy is the embodiment of the academic power by administrative power, administrative power intervening in academic matters too much, so that damage the academic freedom. Is mainly reflected in three aspects: one is the structure and function of academic organization administration. "Department of our university organization structure or the school system, or now 'upgrade' school faculties, in the strict sense is not an academic organization, but a teaching administrative organization." [50] this emphasis on hierarchical mode of obedience and academic activities principle is opposite in many cases. Two is the fuzzy academic and administrative fields. "Education Law" and "Higher Education Act" provisions of the autonomy of the University, but no more clearly to the internal structure of distinction, these problems should be clearly stipulated by the articles of association to the school. At present, most of the "school regulations are too principle and is often considered a 'no'." [51], many schools have not charter. [52] in the administrative leadership in the pattern, this situation can easily lead to administrative power into the field of academic matters. The essence of the basic requirements such as the Graduate School of Peking University established "Peking University graduate thesis and format of writing" the first point of doctoral dissertations of provisions, there is excessive too. [53] three is the lack of academic staff in evaluation system. In many university, no academic staff to participate in the evaluation mechanism, so that the existence of a large number of non academic standards exist in the academic evaluation system. Because, "the value of power can not grasp the essence of the value of teaching, scientific research, have to power will make some formal parameters, such as length of service, age, research funding, the words, to obtain the amount of winning and part-time status, to replace the academic index." [54]

This imbalance is the cause of our current system and the concept itself is caused by, there are two main reasons: one is the lack of University of entity position. China's "higher education law" provisions of article thirtieth of the high school legal person qualification, and the provisions of the principal as the legal representative; and the provisions of article thirty-ninth higher schools to implement the president responsibility system under the leadership of Party committee. In Universities in our country exists generally, Party leadership and the executive power of the president is not divided, the autonomy of national laws and regulations of the executive power and the school itself is not divided, resulting in schools outside the will to power through the internal structure of autonomy in the dominant administrative power into the academic field, producing a transmission function, to the detriment of academic freedom. [55] two is the university the goal of self lost. After the Fourth Plenary Session of the eleven Communist Party of China, explicitly proposed the establishment of the socialist market economy, the reform of market mechanism have been introduced into the education system. This reform has greatly promoted the development of higher education, but also make some university self goal lost. Embodied in the exercise the administrative power tend to economic benefits for the self goal of internal structure in the autonomous rights, instead of academic freedom. For example, greatly expanding the enrollment expansion of students at their own expense, especially popular professional enrollment, which may influence the establishment and development of the discipline, these are the economic goal of administrative power exercising based on error. If the office of Graduate School in Shenzhen, which belongs to the scope of school autonomy, to adapt to the urgent need of society, but to achieve its goal of self role is not obvious.

(two) the rule of law in Education: university autonomy intrinsic structure equalizing force

Since the reform and opening up, along with the development of the whole legal system, China has initially formed a relatively independent legal system of education. However, the internal structure of university autonomy adjustment is basically belongs to the blank, this point is determined by the internal structure of university autonomy, its own instability. However, this does not mean that the rule of law in education for university autonomy attempt nothing and accomplish nothing equalizing process of internal structure of the right. On the contrary, in the rapid development of the rule of law China today, education of the rule of law should be the main force to promote the internal structure of equalization. That is to say, can improve the legal system of education and the promotion of the internal management of schools of the rule of law, fair game mechanism to construct the academic freedom right and administrative right, promoting the gradual equalization of its internal structure. Specifically, it can in the following areas for:

First, committed to achieving the game both parties equal position. The mainland of China, "Education Law" and "higher education law" about autonomy, subject to the provisions of the "school" and "high school", and "higher education law" also stipulates the legal representative of school principal is "". Among them, and not subject to further clarify the right of academic freedom. [56] so, in practice, whether it is the right of academic freedom or administrative power, the subject may be administrative organs or personnel. The school internal constitution of the two main organization are not clear. [57] "internal management mechanism for our university authority, often be habitual or inherited, or approved by a school within the scope of responsibility of institutions under the. As for the various internal organs of authority and in what concerns on behalf of the school to exercise their functions and powers, not strict rules at school Zhang Chengzhong." [58] so, game university autonomy in internal structure of both sides in the legal status is not equal, the basic premise of the lack of fair game.

Therefore, need to rely on the legal system to enhance the legal status of university autonomy, academic freedom rights inherent structure subject. A is for matters purely academic freedom in the education laws, regulations clear the subject of human rights is the academic staff. For example above the second and third categories of items. The two is for matters can be dominated by academic power and administrative power, should not be the subject in the education laws, regulations. But by all schools in the University in the articles of association according to the actual situation of the school to be clear. For example, about whether students should become the main body of the right of free learning, the author thinks that the university should be within the law according to the school's own situation from the decision, be clear in the University charter. The three is a basic principle of clear legal ownership in the education laws, regulations. Principles and administrative matters to establish academic matters by the academic staff, administrative staff led limited participation by executive led, academic staff limited participation principle. This is the academic power and administrative power may be matters of common domination of the guiding principles of judging. For example, as the fourth class, fifth class and seventh class of items is displayed, which side should be dominant, need according to this principle, concrete analysis of concrete conditions, but not in the education laws, regulations or the articles of association shall be made clear in the university.

Second, efforts to promote the game rules and fair. In the internal structure of university autonomy, embody the administrative power more as a right, and the right of academic freedom embodied a kind of natural rights, in a weak position. The vulnerable position caused between the two sides of the many unfair phenomena. The exercise of administrative power such as the lack of legal norms, or beyond the authority, or does not comply with due process; the subject of administrative management right completely determines the academic staff welfare, security, lack of academic staff participation rights; in the common control matters, administrative subject unilateral decision, not listening to the relevant academic staff views.

Therefore, need to rely on education legal system to safeguard the university autonomy in internal mechanism of the fairness of the game. One is to education in the legal system to regulate the exercise of administrative power. For example, in the Tian Yong vs. the University of Science and Technology Beijing case, cause losing of schools including two points: one is to quit the school did not get practical implementation, two is not follow the basic requirements of the program. [59] this reflects the van and uncontrolled internal management the exercise of loss. So, we should improve the internal rules and regulations, and to follow the proper procedures for the exercise of administrative power. The two is to establish the system of democratic participation. To realize the interaction between autonomous right intrinsic structure of both sides, we must have a participation mechanism. On administrative matters of great, may affect the interests of academic staff, should be given appropriate participation, and their opinions can produce certain effect to these matters of decision. Conversely, some academic matters, cooperation and security administrative power needs, should also be given administrative personnel involved, so that the two sides can better coordinate. Three is to consult on matters of common control system. For these matters, shall be made by the parties through democratic consultation, agree later to decide. In addition, it needs to be pointed out that, to promote the game fair is also the need for standardization of the academic staff. However, as long as the academic freedom rights (right) of the exercise is not in violation of state law, the improper exercise of this right behavior basically belongs to the range of academic ethics adjustment.

Third, to play the game mechanism to ensure the function of judicial review. In recent years, China's higher education administrative litigation cases emerge in an endless stream. As of 1998 1998, Tian Yong vs. University of Science and Technology Beijing case Qikaili v. University of Science and Technology Beijing case, at the beginning of 1999, Zhang Wang v. Southeast University case, Liu Yanwen v. Peking University case at the end of 1999, the 2000 Yu Dandan v. XiangFan University case, 2001 yellow Yuanhu v. Wuhan University case etc.. But, so far, both in theory and judicial circles, on university autonomy matters should be recognized by judicial review is still not completely uniform. If not in 2004 as min Di v. Soochow University enrollment in the case, the court rejected the plaintiff's prosecution. The reason is that "according to the provisions of the education law, the school recruit students admitted to behavior is self management behavior, does not belong to the category of administrative power....... The Soochow University is the admission min Di belongs to the school autonomy category. Therefore, the defendant on the basis of enrollment rules determine whether accepted the behavior, not the administrative behavior, is notAdministrative lawOn the significance of actionable." [60] this reason hidden logic lies in the assurance of university autonomy, but did not understand the internal structure of university autonomy, not aware of the administrative authority may also become a pressing University autonomous power. In fact, the judicial review of university autonomy administrative power internal structure of power can be more favorable to protect academic freedom, it should be an important symbol of modernization and the rule of law of the university. "Judicial review on the internal administrative power, not only in its practical application can protect the rights of the legitimate rights and interests, and because of the existence of judicial review, it will produce a psychological pressure on the teaching management staff, you can encourage them to exercise power more cautiously, normative management behavior, consciously according to the spirit of the rule of law." [61]

Therefore, the need for further play security function of judicial review of university autonomy within the game mechanism. One is in accordance with the principle of rule of law requests to review university internal rules and regulations. "Education Law" provisions of article twenty-eighth, "according to the University's self-management", which defines the exercise of university autonomy must obey the principle of rule of law. Especially the school constitution is the basis of school administration and self-discipline, should is an important basis for the acceptance of administrative supervision and judicial review in accordance with the law. It must not be excessive, and in line with the principle of legal reservation. Two is in accordance with the requirements of due process to review the administration behavior. Due process contains the basic idea of "lowest justice", which some process factors in a legal process is the basic, essential and give up, otherwise, people will feel the consequences may be unfair, unacceptable. The most common problems [62] the university administrative power is exercised in procedural flaws, thus causes many disputes. Tianyong case and the Liu Yanwen case, judicial review of the court were strictly based on the requirements of due process to exercise the power of administrative management of colleges and universities, greatly promoted the process of the rule of law. But the standard of administrative power of this power, is indirectly on the academic freedom rights the rights protection. Three is in accordance with the difference of the internal structure of the University autonomous right to grasp the intensity of judicial review. Since the intensity of judicial review, it means that not all of the university autonomy should receive judicial review. In fact, a purely academic freedom matters, each country and area are generally not be judicial review. [63] so, when the judicial review on the internal university autonomy to the court, the most difficult problem is where to stop, that is how to distinguish the right of academic freedom (LI) and administrative power (force). The author thinks, with six points difference between heterosexual above explains both might serve as the standard reference to distinguish. None of these standards, is likely to guarantee judicial review of academic freedom has not appeared on academic freedom, and results of the damage has occurred.

Six, the conclusion

America education experts Hutchins pointed out, loss of autonomy, the higher education has lost the essence. That is to say, the academic university inevitable requirement of University autonomy. So, "to ensure that the university academic like that organisms like protein, is the core of the development of University extension." [64] but in a society ruled by law, judicial review on the application field of social and public affairs management also has a legitimacy, public university management is no exception. The problem is that "although the legal protection of equal rights, education and academic freedom is a universal standard in the field of education with the legal ways to solve the problem,...... But between country and country of education management is completely different, there does not seem to be a universal law, to illuminate the traditional education administration of the jungle." [65] in view of this, we must thoroughly "Jungle", a judicial intervention "boundary", also delineate the education legal system "territory". Can say, this "jungle trek", is a necessary requirement to achieve the legalization of university governance, rule of law is clear "blind area", fully implement the concept of the rule of law in the call of the times. (source: Beijing University Legal Information Network)

Notes.

Biography: Zhan, Professor of Peking University law school; Han Chunhui, doctoral student in the Department of the Peking University School of law.

[1]1996 January Peking University academic degree evaluation committee held a meeting on 29 PhD application including Liu Yanwen, the thesis made a comprehensive audit. The Ph. D. Liu Yanwen the audit, the school academic degree evaluation committee eventually to means of secret ballot, with 6 votes in favor, 7 votes against, 3 abstentions, in favour of not all members of the academic degree evaluation committee in half, the school has made no doctorate granting Liu Yanwen's decision. Peking University will accordingly not by Dr. Liu Yanwen graduation certificate, and certificate issued only to dr.. In 1999 September, Liu Yanwen to the Haidian District people in Beijing CityCivil lawInstitute administrative proceedings, sued the Peking University and the academic degree evaluation committee, Peking University, awarded for their doctoral post graduate diploma, requires schools to the academic degree evaluation committee for the review on it within a reasonable time and make a decision. Haidian District Beijing people's Court of first instance after the court hearing, the defendant of Peking University in the verdict within two months after Liu Yanwen awarded Ph.D. graduate certificate, to order the defendant to Peking University within three months after the entry into force of the decision on whether to approve the review decision awarded a doctorate in Liu Yanwen to make a decision after. The appeal to the Beijing first intermediate people's Court of second instance court in the trial court, failed to establish the limitation problem on the grounds, to rescind the original judgment, the retrial; Haidian District court in the trial of the plaintiff in excess of the statutory prosecution deadline for, dismissed the plaintiff's prosecution; the plaintiff appeals, the Beijing first intermediate people's court rejected the prosecution, maintain the original order. See the Beijing Haidian District people's court in administrative judgment details (1999) sea line at the beginning of the word no. 103rd, the Beijing first intermediate people's court administrative rulings (2000) a final word of No. forty-third, Beijing Haidian District people's court administrative rulings (2000) at the beginning of sea line No. 157th, the Beijing first intermediate people's court administration Award (2001) a final word of No. fiftieth.

[2] see the Beijing Haidian District people's court in administrative judgment (1999) at the beginning of sea line No. 103rd.

[3] in December 21, 1999 as the Law School of Peking University, an Academic Salon, professor he clearly pointed out: "in this case, I was a bit afraid, that is, to worry about the external power take the opportunity, in the name of Law University of interference on academic freedom and independence, independent of whether it will affect some bad." (see Zhan editor: "higher education and administrative litigation", Peking University press, 2003, page 461st.) Professor Wang Liming of Renmin University of China law school, in Liu Yanwen v. north of a case, "the court doing it not by force and things. Through the judicial remedy to protect the rights of citizens is important, but the academic judgment, justice is best not to intervene. Academic evaluation should be the independent decisions. The judgment of the court to change the academic judgment of Academic Committee concluded, not only hindered the university autonomy, academic freedom is the lack of respect." But Professor Lao Renmin University of China law school professor Hu Jinguang and the Beijing Normal University took the opposite point of view, they think "is limited to" the judicial intervention, "only to the degree granting program is legitimate on the judgment, not the academic level of judgment, it should be said that no violation of academic freedom." See Zheng Lin: "decision in Liu Yanwen v. north one case, cause intense discussion of experts and scholars", "Youth Daily" China contained in January 9, 2000; Xu Jianbo, Hu Shitao: "in dispute can start the judicial process", contained in the "procuratorial daily" January 10, 2000.

[4] Qin Huimin: "trend in the legalization of college management concept collision and right conflict", contained in the "China educational law review" first series, Education Science Press, 2002 edition, page sixty-fourth.

[5] "Ci Hai" compact edition of the Shanghai dictionary press, 1989 edition, page 1317th.

[6] "Ci Hai" compact edition of the Shanghai dictionary press, 1989 edition, page 1317th.

[7] Tang Yuguang, Xue Tianxiang: "university autonomy and the autonomy of higher education", contained in the "Shanghai higher education research" in 1994 fourth.

[8] He Defen: "academic freedom and academic ethics between alienation and attachment", contained in the "paper" seminar on University, Law School of Soochow University in 1998 April edition, page ninety-first.

[9] Lin Shizong: "the implementation ofConstitutionGuarantee of academic freedom and university autonomy ", contained in the" paper "seminar on University, Law School of Soochow University in 1998 April edition, page seventeenth.

[10] Cheng Yanlei: "the judicial review of the limited intervention of university autonomy", contained in the "study" administrative law in 2000 second period.

[11] Wang Deyao, Xue Tianxiang: "on university autonomy", contained in the "Shanghai higher education research" in 1994 second.

The [12] definition of "university autonomy", the academic circles has not clearly defined, but the basic convergence on its connotation. University autonomy mainly refers to the management of the independent. That is, dealing with the school internal affairs autonomously, minimal received from external intervention and control. Mainly embodied in: the personnel recommended and patronage, university curriculum right, degree qualification, recognized and awarded, the power of legislation, the university financial control, university facilities management rights. See Tang Yuguang, Xue Tianxiang: "university autonomy and the autonomy of higher education", contained in the "Shanghai higher education research" in 1994 fourth.

[13] Huang Houming: "university autonomy of history, cultural perspective", "science and technology in Higher Education Research" in 2002 sixth.

[14] see "Education Law of the people's Republic of China" twenty-eighth, "the people's Republic of China Higher Education Law" thirty-third, 38, forty-first, forty-second.

[15] on the university autonomy in the main expression, "Education Law of the people's Republic of China" is the "University and other institutions of education", "the relevant provisions of the people's Republic of China Higher Education Law" is the "high school" and "school principals". Visible, the autonomy does not confer to the professor and students.

[16] "all over the world first-class university all have extremely magnificent building stands in the campus, and abundant financial resources, teachers and students. However, more importantly, the connotation of University, there are academic freedom and autonomy fully atmosphere....... The world first-class university which was a 'breath of academic freedom', shows the importance of academic freedom of University development". See Lin Shizong: "to implement the constitutional guarantee of academic freedom and university autonomy", contained in the "paper law University set", Soochow University School of law of the Republic of China in April 87 edition, sixteenth - 17 pages.

[17] German scholars generally agree with the first opinion, but also by the German Federal Constitutional Court's support; USA scholars generally agree with the second view, they put the academic freedom of university autonomy as a group of rights; support two kinds of views of Japanese scholars have, but agree with the first kind of more. Details see Ma Fengqi: "university autonomy and academic freedom", "exploration" contained in the 2004 fourth issue of higher education; Li Renmiao: "university autonomy and drop sanctions -- Comment on the Supreme Administrative Court sentenced ninety-one year No. four six seven decision", contained in the "new law journal" in 2003 third.

[18] Hu Jianhua: "see some more" two university autonomous mode, contained in the "global education outlook" in 2002 12.

[19]The four essential freedom of a university to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study. See Sweezy v. New Hamshire

[20] UK, France, Germany, and Japan American learning autonomy includes the academic, administrative and financial aspects. Details see Peng Hongbin: "the evolution and characteristics of" five western university autonomy, contained in the "Journal of Xiangtan Normal University: Social Sciences Edition" in 2002 fourth.

[21] Ma Fengqi: "university autonomy and academic freedom", "exploration" contained in the 2004 fourth issue of higher education.

The second view [22] basically is the cross-strait consensus. Such as, some scholars believe that, "the university is organized form internal requirement of academic freedom, university autonomy is the institutional protection of academic freedom". Some scholars believe that in Taiwan, "university autonomy is derived from the nature of academic freedom,...... Autonomous University Department is on the system of academic freedom guarantee." Some Taiwan scholars think, Taiwan Grand Justices of Judicial Yuan interpretation: "the express No. 380 of article eleventh of the constitution freedom of teaching regulation, on the system of academic freedom guarantee." See Yan Hailiang: "academic freedom, university autonomy and constitutional government", contained in the "academic forum" in 2005 second; see Ge Kechang: "autonomy and national supervision", contained in the "challenge and Innovation: change the world in Higher Education -- cross strait higher education academic seminar (2005.4.4 2005.4.5)", 153rd page; see Cai Maoyin: "academic freedom guarantee and educational administrative supervision power limits -- Comment on the judicial Conference Interpretation No. 380th interpretation", contained in the "month Dan law" 1995 second, fifty-fifth pages.

[23] in the educational circle, and some scholars and the relations of power inside the university is divided into "academic power" and "administrative power" two categories. The author thinks, this classification noticed the difference characteristic of the adjustments, but not recognized in the internal relations of schools of academic freedom is more of a "right", the administrative power is more embodied in the "power", both are fundamentally different. If academic freedom is a kind of "power", it means that the other party has the obligation of obedience, which appeared to suppress academic freedom "learn", actually this is the alienation of the academic freedom rights "". Therefore, the research results of the reflective reference, and then put forward the "academic freedom (LI)" and "administrative power (force) to distinguish." See Qin Huimin: "power and the power conflict" academic management activities, contained in the "Chinese educational law review" first series, Education Science Press, 2002 edition; Zhang Dexiang: "the academic power and administrative power in higher schools", Nanjing Normal University press, 2002 edition, nineteenth - 27.

[24] administrative power often refers to the national administrative power, the administrative organ of the state rely on coercive means specific, for the effective implementation of the will of the state and according to the constitution, principle of management ability of the whole society. But it is also used to refer to the social organization of administrative power. Based on this understanding, the author puts forward in the internal university autonomy proposed "administrative power (force)" this concept. See Zhang Guoqing: "Introduction" administrative science, Peking University press, 1995 edition, page 218th.

[25] academic freedom is a kind of right in rem, has an exclusive effect. It not only requires not subject to administrative intervention, nor by other academic staff interference, so it is the main body of a single individual. This is also the author does not agree with "university autonomy is one of the reasons this view groups of academic freedom".

[26] Zhan, Li Fengying: "on the perfection of higher education degree system in our country -- Analysis of" legal problems related to Liu Yanwen v. Peking University case, contained in the "foreign law" in 2000 fourth.

[27] Jiang Ru: "look at the reform and development of Peking University students change from", contained in the "higher education research" in 1998 fifth.

[28] such as the European medieval university enjoys a lot of autonomy, but who will dominate the truth monism, they are not academic freedom, inner structure can be said to their autonomy is a dual structure, administrative power control. Another example is Japan in 1886 after several years, they generally established university autonomous system and habits, but the Meiji Constitution before the World War II and no academic freedom regulations. The internal structure of its autonomy has also gone from the administrative power to the unified pattern of administrative power and academic freedom the coexistence of two element pattern of change. Visible, the changes of the internal structure of the university autonomy is an inevitable development of history.

[29] see in November twenty-eight years Guangxu issued the "imperial imperial academy's charter", loading chamber its study Peking University Peking University: "historical" Volume I, Peking University press, 1993 edition, eighty-seventh - 97.

[30] "University" is to develop various domestic university, but the University was the only national university. So this act actually became the basic Charter of Peking University. See Xiao Chaoran et al: "Journal of Peking University 1898 - 1949", Shanghai Education Press, 1981 edition, thirty-third - 35.

[31] Cai Yuanpei of these ideas is obviously influenced by German educationalist Humboldt, inherent logic he these measures is the administrative autonomy as maintaining academic freedom force. See the "beauty" Wei Dingxi: "Peking University and China political culture", Jin Anping, translated by Zhang Yi, Peking University press, 1998 edition, 140th - 146.

[32] Xiao Dongfa et al: "strength of character -- from the Imperial University to the old North", Beijing Library Press 2003 edition, sixty-fourth - 65.

[33] Li Jianping: "a hundred years Chinese university autonomy and social intervention", contained in the "Journal of Hebei Normal University (SOCIAL SCIENCE EDITION)" in 2005 first.

[34] Yang Shaojun: "the Southwest Associated University and contemporary Chinese higher education", "academic exploration" contained in the 2000 sixth issue.

[35] Yang Shaojun: "the Southwest Associated University and contemporary Chinese higher education", "academic exploration" contained in the 2000 sixth issue.

[36] Hong Deming: "the Southwest Associated University Spirit and school characteristics (under)", contained in the "higher education research" in 1997 second.

[37] Chen Daisun: "Tsinghua University school leadership system and former president of Mei Yiqi" in thirty or forty, contained in the "historical data" from the eighteenth album, Beijing press, 1983 edition.

[38] Wang Xuezhen et al: "Peking University Chronicle" book, Peking University press 1998 edition, page 413rd.

[39] however, this period of university autonomy has not disappeared. Such as North China Higher Education Commission notice 1729 a mandatory high school 1949 year public course requirements, but also allows the schools "if difficult, can be dealt with in accordance with the specific circumstances, but should be reported to the." See Wang Xuezhen et al: "Peking University Chronicle" book, Peking University press 1998 edition, page 411st.

[40] Zhang Jian: "China Education Yearbook (1949 - 1981)", China encyclopedia press 1984 edition, page 778th.

[41] see Vice President Jiang Longji in January 8, 1958 "on the rectification work summary and rightist problem report". Part contained in Wang Xuezhen et al: "Peking University Chronicle" book, Peking University press 1998 edition, page 526th.

Several famous [42]1979 year in December 23rd "people's Daily" published by Fudan University President Su Buqing, Secretary of university presidents in calling for a "to the high school a little autonomy". "People's Daily" to the editor's words, put forward: the school should there be little autonomy, should have what autonomy, how to reform the education system, to better adapt to shift the focus of the work, this is a problem that is worth to discuss, hope that the whole society puts forward constructive suggestions. The appeal and the note, aroused a strong resonance in the field of education.

[43] "on Reform of the education decision" clearly stipulate the should have 6 aspects of autonomy, namely "in the implementation of the national policy, law, plan under the premise, colleges and universities have the right in the plan accepted by train and recruit self funded students: has the right to adjust the direction of professional service, setting up teaching plan and syllabus preparation of teaching materials, and have the right to accept the entrustment; or units, scientific research and technology development, the establishment of teaching, scientific research, production of the Commonwealth; has the right to nominate and appoint vice president and other leaders at all levels have the right to make specific arrangements; the country's infrastructure investment and financing; the right to use the funds raised by oneself, carry out international education and school communication", these self sovereignty basically belong to the principals and administrative staff. See Deng Xiaochun: "Retrospect and prospect" of higher education system reform China, contained in the "Liaoning" in 1998 first issue of higher education research.

[44] Ren Yankun: "the turn of the century, Peking University" contained in the "truth" in 1998 tenth.

[45] as of 2003 May published "Peking University faculty recruitment and promotion system reform scheme" triggered a widespread debate, this debate is very obvious in this relationship. According to the above matters, Faculty belonging to the common role of academic freedom right and the administrative power. In this dispute has formed by administrative power oriented "reform" and the teachers strength based "opposition", both sides is the university must promote academic freedom, but the ways and measures to reform the significant differences exist, but in the end the scheme by implementing certain modifications. Visible, in such matters, still is the administrative leadership, but the academic staff have a high degree of participation, and can produce certain effect. Is the relationship between the two is coordinated and nervous. The debate. Qian Liqun, Gao Yuandong: "problems and reform" China University, Tianjin People's press, 2003 edition.

The internal structure of [46] this paper argues that the university autonomy to be two yuan, this is the university autonomy and the above part two "elements" closely associated. If is one of the dominant "elements", another "elements" completely without the existence of space, this can be said to be the "unification", but can not be said to be "an element structure". Because of its internal inseparable, does not exist "space dimension structure". Because of this, so the author thinks that the internal structure of autonomy does not exist second stage and fourth stage.

[47] Zhang Weiying: "the logic of the University", Peking University press, 2004 edition, page fifty-second.

[48] should be pointed out that, since the internal structure of university autonomy is a strategy of equilibrium, then may also exists difference between different school. The higher the level of running a university, the history is long, the administrative power and more standardized, the right of academic freedom to play greater role. And vice versa. Some scholars have recognized this point. See Bi Xianshun: "reform" higher schools "internal management system conformity and reconstruction of the system -- in social reform, contained in the" China educational law review "third series, Education Science Press, 2004 edition.

The autonomy of the University of [49] in Europe and the United States is the logical development of the medieval university, and our university now has the autonomy to deepen the reform of government management system and gradually acquired. The former is taking the path of development from bottom to top, the country is in a passive state; the latter is taking the development path of top-down, state is in active state. Generally when the government lack of authority, Professor managing mode autonomous loud social environment can win more autonomous space. Otherwise the school model is more feasible.

[50] Zhang Junzong: "modern university institutions", China Social Sciences Press 2004 edition, page 263rd.

[51] Qin Huimin: "thinking" initiated the concept collision and right conflicts in the legalization of College Management -- the case, contained in the "Chinese educational law review" first series, Education Science Press, 2002 edition.

[52] of the Peking University about each enrollment, community management and so on are the articles of association or the specific management way, but it has not a general statute, distinguished academic matters and administrative matters is not clear.

[53] see Graduate School of Peking University: "Peking University graduate student handbook" 2004 edition.

[54] Li Jiangyuan, Wu Chunhua: "on the" high school administration, contained in the "exploration" in 2000 first issue of higher education.

[55], for example, in the 14 member of the Party committee of Peking University, the incumbent, 7 of the school administrative leadership; at the same time, President and chairman of the academic evaluation committee. In this way, political leadership, administrative power and academic freedom right formed a importing will "conveyor belt".

[56] see "Education Law" twenty-eighth; "Higher Education Act" thirtieth - 38.

[57] Peking University internal composition, main body in comparison to determine the administrative power is the president and the office, the academic freedom right comparison is determined by the academic degree evaluation committee (in fact, this point in Liu Yanwen v. North was also controversial, but according to the 1981 "Regulations" can be identified by their degree conferred by law of academic freedom. The main body of the right position). However, the subject, and the teaching a workers congress, union membership congress, students, graduate students and Degree Committee of autonomy is the main body, which are "elements" is not clear.

[58] Qin Huimin: "thinking" initiated the concept collision and right conflicts in the legalization of College Management -- the case, contained in the "Chinese educational law review" first series, Education Science Press, 2002 edition.

[59] in the case, the court finds that the defendant "right to quit decision relates to the plaintiff's education, fully protect the rights and interests of the parties from the principle of the defendant should be decided to direct my service, announced, allows the parties to present arguments. The defendant neither according to this principle, respect the rights of the parties, also not practical to the plaintiff for cancellation of registration, transfer of registration, filing procedures....... The defendant in 1996 September and be required for the student ID and registered the fact behavior, shall be deemed to be the defendant changed the plaintiff to drop out of treatment decisions, restored the status." See the Beijing Haidian District people's court in administrative judgment (1998) at the beginning of sea line No. 142nd.

[60] see the Jiangsu province Suzhou City Intermediate People's court administrative rulings (2004) at the beginning of the word no. fourth in the su.

[61] Qin Huimin: "thinking" initiated the concept collision and right conflicts in the legalization of College Management -- the case, contained in the "Chinese educational law review" first series, Education Science Press, 2002 edition.

[62] Wang Xixin: "due process of law and the minimum justice", contained in the "Law Review" in 2002 second.

[63] although different theories of judicial review, but in the judicial practice are basically put some academic freedom matters recognized out of the scope of review. Such as the German court is the German Basic Law Article Fifth Third "academic", "research" and "teaching" as the "uncertain legal concept" preclude judicial review; the Japanese court is the twenty-third constitution of Japan's "academic freedom" as "element discretion" excluded from the scope of judicial review; the scope of Taiwan District Court general put it into "judgment" excluded. See Li Renmiao: "university autonomy and drop sanctions -- Comment on the Supreme Administrative Court sentenced ninety-one year No. four six seven decision", contained in the "new law journal" 2003 third; Weng Yuesheng series: "administrative law", Chinese legal Press 2002 edition, 230th - 237.

[64] Zhang Junzong: "modern university institutions", China Social Sciences Press 2004 edition, page 139th.

[65] "Concise International Encyclopedia of education. Education management education ", Science Press, 1992 edition, page 171st.

Reference.

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[2] Zhang Junzong: "modern university institutions", Chinese Social Sciences Press 2004 edition.

[3] Zhang Dexiang: "the academic power and administrative power in higher schools", Nanjing Normal University press, 2002 edition.

[4] Wang Xuezhen et al: "Peking University Chronicle" book, Peking University press 1998 edition.

[5] Shaw detached et al: Peking University history "1898 - 1949", Shanghai Education Press, 1981 edition.

[6] Xiao Dongfa et al: "strength of character -- from the Imperial University to the old North", Beijing Library Press 2003 edition.

[7] Zhang Guoqing: "Introduction" administrative science, Peking University press, 1995 edition.

[8] Weng Yuesheng series: "administrative law", China legal Press 2002 edition.

[9] "beauty" Wei Dingxi: "Peking University and Chinese political culture", Jin Anping, translated by Zhang Yi, Peking University press, 1998 edition.