III. Reflection on the application of the constitution in judicial judgements on educational infringement disputes and relevant issues from a jurisprudential perspective
It can be seen from previous discussion that the litigant was infringed in 1900 in the Qi Yuling case while the current Education Law became effective as of September 1, 1995. According to the principle of non-retroactivity, the court should not judge the case on the basis of the Education Law. The right of personality in the civil rights, however, excludes the fundamental right to education. Consequently, the court had to cite the provision in the constitution. As the Luo Caixia case happened after the enactment of the Education Law, the court and relevant divisions heard and judged it in accordance with the pertinent provisions of the Education Law. Apart from other factors, it can be seen from the Luo Caixia case that great progress was made in the approaches to relief for the right to education and in legal basis. Our educational legal department experienced continuous development and improvement.
The Qi Yuling case indicates: the constitution is supposed to be a reliable basis and the last guard line for the realization of fundamental rights when citizens try all other legal means and still fail to get adequate relief in face of the infringement of their right to education. Jurisprudentially, all acts in violation of the constitution shall be subject to constitutionally negative evaluation and liable for such violation. "Although the constitution is the fundamental law of the state, it is a mandatory and binding law applicable in the courts, with the same nature as other laws."[8] The Luo Caixia case shows: if the cause of action is clear and legal basis is adequate, courts shall first consider applicable common laws rather than the constitution as the immediate basis for judging disputes over the infringement of the right to education, avoiding the generalization of constitutional protection of fundamental rights. The question is that constitutional provisions are like the "King Provisions" in the area of the constitution (just like the "principle of good faith"— —the king provisions in civil law). In practice, in light of the characteristics of the constitution, i.e. principled, inadequate with respect to punishment and fundamental, constitutional provisions shouldn''t be applied as the foundation of the "right of claim" for the right to education whenever possible. Especially, when common law basis is available, the application of constitutional provisions shall depend on the circumstances, otherwise, the means of constitutional protection for fundamental rights is prone to generalization.[9] From this, it is comprehensible why the Supreme People''s Court repealed its previous 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 on December 8, 2008 after the Qi Yuling case.
Moreover, on November 4, 2009, the Supreme People''s Court promulgated the Provisions on Citation of Such Normative Legal Documents as Laws and Regulations in the Judgements, regulating the citation of legal basis in criminal, civil and administrative judgements. However, the matters concerning whether the constitution can be cited or not wasn''t covered under the provisions. At about the same time, on December 26, 2009 at the Twelfth Session of the Eleventh Standing Committee of the National People''s Congress, the scope of tort liabilities for infringing civil rights as set forth in the Article 2 of the Tort Liability Law of the People''s Republic of China was adopted, covering the right of life, the right to health and the right of name etc. but not the right to education. In this regard, the author reflected on a further question: the Qi Yuling case and the Luo Caixia case came to end as the judicial procedure was concluded. However, in terms of the litigation and resolution of similar cases and actual results, the approaches to the judicial relief for the right to education weren''t improved along with the application of litigation and resolution in the above cases. Pertinent theoretical controversies and challenges in practice weren''t evaporated along with the judgements gave by courts.
