西方国家教育惩戒权的法律规制及其启示-清华大学教育研究

文章信息/Info

Title:: The Legal Regulation of Education Disciplinary Power of Western Countries and Its Inspirations

Author(s):: WU Liang; Law School, East China University of Science and Technology

Keywords:: western countries; education disciplinary power; regulation; corporal punishment

摘要:: 由于对教育惩戒权的认知差异,西方两大法系国家对教育惩戒权的法律规制分别采取高权管制模式与私权自治模式。20世纪80年代以来,在尊重教育基本权利与非暴力教养成为全球立法潮流,过度限制惩戒影响教育质量提升等多重社会背景下,西方国家开始引入新公共管理理念,从合法性规制逻辑转向绩效管理逻辑、权利回应逻辑、国家控制逻辑并存的混合规制逻辑。强调学校、教师与学生之间在学关系的法治化;强化教育惩戒权以提升教育质量、落实校园安全,鼓励教师基于专业自主权实施惩戒;通过放管服新政处理好积极惩戒与禁止体罚的关系,这些都成为西方国家教育惩戒权规制变革的趋势。

Abstract:: Differences in understanding the nature of educational disciplinary power make the two major legal systems in the West adopt two different modes in the legal regulation of educational disciplinary power: the “high-power-control mode” and the “private-right-autonomy mode.” Since the 1980s, respecting the basic rights of education and non-violent upbringing became the global legislative trend, and excessive restrictions on punishment negatively affected the improvement of education quality. Under these social backgrounds, western countries began to introduce the concept of new public management and their regulation logics started to transit from the legitimacy logic to a mixed logic of performance management, right response and state control. The new logic emphasizes the legalization of the relationships among the institution, teachers and students at school, strengthens the right of educational punishment to improve the quality of education and campus safety, encourages teachers to implement punishment based on professional autonomy, and handles the relationship between positive punishment and prohibition of corporal punishment through the new policy of deregulation and servitude. All these have become the trend of the reform of educational punishment right in western countries.