Constitutional　Protection　and　Judicial　Relief　for　the　Right　to　Education　of　Chinese　Citizens

张义清

　　As educational reform is going forward after our reform and opening up, citizens'' the right to education has been deeply extended in terms of connotation and the means of protection and the level of institutionalization have been improved substantially. However, various educational disputes have increasingly emerged in the wake of educational reform. More and more new situations and problems have come up. Especially over the past ten years, some issues on the nature of law, legal basis and judicial relief for the right to education have arisen one after another, typically represented by the Qi Yuling case and the Luo Caixia case. Based on these two cases, the paper attempted to discuss how to strengthen constitutional protection approach for the right to education through improvement on educational dispute litigation and resolution mechanism.

　　I.　Review on approaches to legal protection and judicial relief for the right to education from the Qi Yuling case to the Luo Caixia case

　　On August 23, 2001, Shandong Provincial Higher People''s Court concluded the well-known Qi Yuling case in China. In this case, a judicial interpretation of the Supreme People''s Court cited by the court aroused wide public concern--Interpretation (2001) No.25 Official Reply of the Supreme People''s Court on Whether the Civil Liabilities Shall Be Borne for the Infringement upon a Citizen''s Fundamental Right to Education. As provided in the interpretation, "Since Chen Xiaoqi has infringed Qi Yuling''s fundamental right to education provided in and protected by the constitution by means of infringement of the right of name and caused specific damage, Chen Xiaoqi shall bear corresponding civil liabilities".[1] Later, Shandong Provincial Higher People''s Court gave a final judgement on the case according to the Official Reply. It was expressly judged, "The appellee Chen Xiaoqi and Chen Kezheng shall compensate Qi Yuling for the direct and indirect economic loss and metal injury arising from the infringement of the right to education, totaling about RMB100,000; the appellees, namely Jining Business School, Tengzhou No.8 High School, Tengzhou Education Commission and the others, shall bear joint and several liabilities for compensation."

　　It can be seen from the case that whether or not Qi Yuling''s appeal for the right to education can obtain the support of the court determines the amount of compensation to be made. According to the comment of a scholar, "Civil action serves as a mean of relief for fundamental rights provided in the constitution. The Official Reply improves and diversifies the judicial protection approaches for the constitutional rights of our citizens. It is of great significance."[2] Certainly, there were some scholars that sharply criticized the judicialization of the constitution from an academic perspective. In their opinions, the constitution is not applicable to the case at all. The judicial application of the constitution misunderstands constitutionally legislative and administrative implementation mechanism. Furthermore, it is prone to causing theoretical confusion over the constitution.[3]