According to the trials and results of above two cases, there is something in common. Litigants'' causes of action in both cases involved the right to education. Both cases proceeded to judicial procedure on the basis of legal proceedings instituted by litigants. More particularly, there were certain differences in the judicial procedure of the two cases. On the one hand, only civil judicial procedure was applied to the Qi Yuling case, while both civil judicial procedure and criminal judicial procedure were applied to the Luo Caixia case; on the other hand, the final resolutions and applied legal basis were different in of the two cases. Fundamentally legal basis applied to the Qi Yuling case was the pertinent provision in the constitution, while the legal basis applied to the Luo Caixia case was the pertinent provision in specific law like the Education Law.
II. Nature of the right to education and legal basis for protection
Infringement of the right to education is one of causes of action in the above two cases. Speaking of whether and how the people''s court supports litigants'' action for such infringement, the first problem to be solved is the nature of the right to education. Some questions as to whether the right to education belongs to public rights or private rights and whether it belongs to constitutional rights or civil rights have been in controversy for a long time. The nature of the right to education hasn''t been defined clearly. If the right to education is defined according to public rights, the subject of the right would be citizens and, thus, the subject of duty would be the state. In such case, the state must play an active role in guaranteeing the realization of the right of citizens as fully reflected by current compulsory education system. However, with the deepening of educational reform, the subject of education has represented a trend of diversified development. The right to education has shown more and more nature of private rights. So, in some people''s view, this right has been largely classified into the range of private rights.
Jurisprudential basis: education providers and education receivers are different stakeholders on the same legal platform and undoubtedly, they enjoy independent legal personality and equal legal status. Those in favor of this view point out that the right to education in the range of private rights is essentially the right of equality and the right of freedom and actually it is an important civil right of citizens. Nevertheless, our existing civil rights exclude the right to education as the right of personality from the perspective of legalism. In fact, after hearing the Qi Yuling case, Zhaozhuang Intermediate People''s Court ruled, "The right to education claimed by the Plaintiff Qi Yuling belongs to a general right of personality. It is the freedom of citizen to diversify and develop self-personality." Subsequently, however, according to the relevant spirit of the Interpretation (2001) No.25 Official Reply of the Supreme People''s Court, Shandong Higher People''s Court in the second instance ruled, "Qi Yuling''s claim that the appellees be liable for infringement of her right to education shall be supported on justified ground." Theoretical disputes and cognitive divergences herein are clear and need to be clarified urgently.
