In China, more and more experts have realized that current judicial organ and judicial procedure are not enough to deal with the complexity and specialty of educational judgement. To ensure the justice and rationality of our court in hearing education cases, it is necessary to establish a special court of education law as other countries do to make educational judicial organ independent in functions and status.[13] Mo Jihong, a famous expert of the constitutional jurisprudence, also maintained, "We need to establish a special court of education law to resolve the administrative, civil and other cases arising from infringement of the right to education."[14] In this regard, to position and establish an educational judicial organ with Chinese characteristics has become an inevitable problem both in theory and practice.
Looking from the judicial practice in China, some grass-roots people''s courts once attempted to establish internal functional organs such as a court of education law or an educational case leading group as early as the beginning of 1990s. However, these organs were dissolved. As the byproduct of reform under specifically historical circumstance, how can we learn from the theory and practice of the court of education law? Should a court of education law be established? With these questions, the author and other members of the subject project group surveyed the first court of education law.[15] The result of the survey revealed: as a court of national judicial body, the court of education law was an internal organ directly responsible for the judicial judgement of educational disputes. In fact, however, the court was not just an internal organ in the judicial body. It also acted as the spokesman of education authorities. Consequently, the organ is of "half administrative half judicial" character. So, the exercise of judicial power can be imaginable. As far as the author is concerned, although the establishment and dissolution of the first court of education law have become a history, it provides precious experience and lesson for us to profoundly review the specific mode of educational judicial organ. Bluntly, the court of education law, as a special historical product, came into being as our educational judicial organ moved towards "independence and specialization". Meanwhile, the court was abandoned because it was not specialized due to administrative dependence. On these grounds, the author got some important inspiration--for our educational judicial mode reform in the future, it is a rational choice to keep the court thoroughly independent, out of administrative dependence, and to gradually set up an educational judicial organ where ordinary judgement is independent.
In particular, the court of education law shall be regarded as an important part of internal organ reform of our courts at different levels. The court shall be composed of a professional judge elected from court structure. The office expense and operating expense shall be included in the budgets of courts at different levels to ensure that the court can independently conduct judgements. Second, the scope of accepting cases shall be circumscribed to ensure the sources of cases, covering all the educational disputes. Meanwhile, it needs to specify what cases are related to education. Unrelated cases shall be excluded from the court of education law to avoid it being overburdened and thus affecting the quality of judgement. In terms of judicial procedure, the practice of other countries can be used for reference. Educational litigation is the optional procedure of education mediation, reconsideration and arbitration etc. Once the final judgement is given, it is binding.Specifically, prior to the promulgation of the educational litigation law,civil litigation procedure is applicable to educational litigation. For the administrative cases where education authorities are a defendant,administrative litigation procedure is applicable. For the cases involving educationally criminal offense, criminal litigation procedure is applicable. Educational liabilities (including the liabilities of administrative organ, judicial organ, education institutions at different levels and individuals in the process of enforcement of education law) needs to be further improved so as to strengthen the implementation of education law and judicial supervision and thus, to ensure the effective implementation of education law and to provide practical approaches to judicial relief for the right to education of citizens.
