Abstract

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Title:: The Judicial Review of Universities’ Disciplinary Action against Their Students: An Observation of Relevant Guiding Cases Released by the Supreme People’s Court

Keywords:: university disciplinary action; judicial review; normativism; functionalism

Abstract:: The guiding cases released by the Supreme People’s Court have established a double standard characterized by the distinction between the strict examination of students’ actions by “the moral standard” and the limited examination by “the academic standard”. Although both standards aim at a “conditionary” principle of law reservation, the different judgment logics lead to conflicts in the conclusions of the two different types of examinations. To resolve the contradiction, it is necessary to re-consider the transformation of the binary opposition between state and society. In democratic rule of law countries, both standards mix with each other and produce functional criteria for identifying the differences, and the route to judicial review of universities’ disciplinary action against their students may be adjusted and reconstructed accordingly. The “purposeful” route to judicial review based on functionalism, according to the principle of law reservation, should acknowledge the universities’ autonomy in education, and ensure the legal protection of students’ rights and interests and the autonomy of colleges and universities through integrating “the moral standard” and “the academic standard”.