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Guiding Case No. 38: Tian Yong v. University of Science and Technology Beijing (a case regarding refusal to issue graduation certificate and degree certificate)
指导案例38号:田永诉北京科技大学拒绝颁发毕业证、学位证案
【法宝引证码】

Guiding Case No. 38: Tian Yong v. University of Science and Technology Beijing (a case regarding refusal to issue graduation certificate and degree certificate)    

 

指导案例38号:田永诉北京科技大学拒绝颁发毕业证、学位证案

(Issued on December 25, 2014 as adopted by the Judicial Committee of the Supreme People's Court)   (最高人民法院审判委员会讨论通过 2014年12月25日发布)

Guiding Case No. 38      
 指导案例38号
Keywords: 关键词
administrative litigation; issuance of certificates; institution of higher education; scope of case acceptance; due process         
 行政诉讼 颁发证书 高等学校 受案范围 正当程序
Key Points of Judgment         
 裁判要点
1. Where an institution of higher education refuses to issue the academic certificate or degree certificate to an educatee who has violated the school rules and disciplines and the educatee raises an objection thereto, the educatee may file an administrative litigation according to the law.     1.高等学校对受教育者因违反校规、校纪而拒绝颁发学历证书、学位证书,受教育者不服的,可以依法提起行政诉讼。
2. Where an institution of higher education makes a decision on ordering an educatee to leave school in accordance with school rules and disciplines that violate the laws, administrative regulations, or rules of the State, the people's court may not affirm such decision.         
 2.高等学校依据违背国家法律、行政法规或规章的校规、校纪,对受教育者作出退学处理等决定的,人民法院不予支持。
3. When an institution of higher education makes a decision against an educatee who has violated school rules and disciplines and the decision affects the basic rights of the educatee, the institution of higher education shall permit the educatee to defend himself or herself and waste no time in serving the decision on the educatee after the decision is made; otherwise, it shall be regarded to have violated the statutory procedures.         
 3.高等学校对因违反校规、校纪的受教育者作出影响其基本权利的决定时,应当允许其申辩并在决定作出后及时送达,否则视为违反法定程序。
Relevant Legal Provisions         
 相关法条
Article 25 of the Administrative Litigation Law of the People's Republic of China
 中华人民共和国行政诉讼法》第二十五条
Articles 21 and 22 of the Education Law of the People's Republic of China
 中华人民共和国教育法》第二十一条、第二十二条
Article 8我反正不洗碗,我可以做饭 of the Regulations of the People's Republic of China on Academic Degrees       
 中华人民共和国学位条例》第八条
Basic Facts         
 基本案情
In September 1994, plaintiff, Tian Yong, was admitted to University of Science and Technology Beijing (“USTB”) and was registered in the school roll of undergraduates. On February 29, 1996, Tian Yong carried a scrip with electromagnetics formulas on it when attending a makeup examination on electromagnetics. When he went to the washroom in the middle of the examination, the scrip dropped out and was found by the invigilators. Although the invigilators did not identify that Tian Yong had the act of peeping at the scrip, they still immediately stopped Tian Yong from taking the examination according to examination room disciplines. In 1994, the defendant, USTB, formulated the Urgent Notice on Conducting Strict Examination Administration (No. 068 [1994], USTB) (hereinafter referred to as No. 068 Notice) in accordance with the spirit of the instructions of the former State Education Commission on strictly enforcing examination room disciplines. In accordance with No. 068 Notice, any student who has cheated in the examination shall leave school and be deregistered from the school roll. Based thereon, on March 5, 1996, the defendant determined that Tian Yong's act was cheating in an examination and made a decision that Tian Yong must leave school. On April 10 of the same year, the defendant filled out and issued a notice on change in the school roll; however, it failed to directly announce the decision on ordering Tian Yong to leave school or serve the notice on change in the school roll upon Tian Yong and failed to handle the formalities of Tian Yong's leaving school. Tian Yong continued to attend normal studies and activities organized by USTB with his identity as a student in USTB. In September 1996, the defendant reissued a student ID card to Tian Yong. In each academic year later, it accepted the education fee paid by Tian Yong, registered his name, granted undergraduate subsidies to him, and arranged him to attend the practical design for university graduates, with the completion fee for graduation design granted by it obtained by his supervising teacher of the thesis. Tian Yong also attended examinations in the name of a student in USTB and successively obtained the qualification certificates of CET-4 and Basic Language in computer application proficiency test. The defendant admitted such facts that during the four years of study in USTB, the plaintiff's academic performance was qualified for all subjects, he passed the graduation practice, design and oral defense of his thesis, he was also awarded excellence in his graduation thesis, and his total academic performance ranked ninth among the whole class.         
 原告田永于1994年9月考取北京科技大学,取得本科生的学籍。1996年2月29日,田永在电磁学课程的补考过程中,随身携带写有电磁学公式的纸条。考试中,去上厕所时纸条掉出,被监考教师发现。监考教师虽未发现其有偷看纸条的行为,但还是按照考场纪律,当即停止了田永的考试。被告北京科技大学根据原国家教委关于严肃考场纪律的指示精神,于1994年制定了校发(94)第068号《关于严格考试管理的紧急通知》(简称第068号通知)。该通知规定,凡考试作弊的学生一律按退学处理,取消学籍。被告据此于1996年3月5日认定田永的行为属作弊行为,并作出退学处理决定。同年4月10日,被告填发了学籍变动通知,但退学处理决定和变更学籍的通知未直接向田永宣布、送达,也未给田永办理退学手续,田永继续以该校大学生的身份参加正常学习及学校组织的活动。1996年9月,被告为田永补办了学生证,之后每学年均收取田永交纳的教育费,并为田永进行注册、发放大学生补助津贴,安排田永参加了大学生毕业实习设计,由其论文指导教师领取了学校发放的毕业设计结业费。田永还以该校大学生的名义参加考试,先后取得了大学英语四级、计算机应用水平测试BASIC语言成绩合格证书。被告对原告在该校的四年学习中成绩全部合格,通过毕业实习、毕业设计及论文答辩,获得优秀毕业论文及毕业总成绩为全班第九名的事实无争议。
In June 1998, when the college and department where Tian Yong studied submitted to the defendant the form for conferring the bachelor's degree on Tian Yong's class, the relevant department of the defendant refused to issue the graduation certificate to Tian Yong on the ground that Tian Yong has been ordered to leave school and did not have his name in the school roll of USTB, nor did it submit the qualification form for graduation dispatch to the administrative department of education. The college and department where Tian Yong studied held that the plaintiff met the requirements for university graduation and was qualified to be conferred the bachelor's degree. As the plaintiff was negotiating with USTB on the issue of his graduation at that time, the college and department did not sign on the form for conferring the bachelor's degree temporarily and were to sign it after the issue of the plaintiff's name in the school roll has been settled. Therefore, the defendant did not put plaintiff's name into the name list of students with qualification for the conferment of the bachelor's degree and submit it to the Academic Degree Evaluation Committee of USTB for approval. Some teachers in USTB have petitioned to the former State Education Commission for the matter of Tian Yong's name in the school roll. On May 18, 1998, the Department for Students in Institutions of Higher Education of the former State Education Commission sent a letter to the defendant, holding that the defendant's disciplinary measure against Tian Yong for his violation of the examination room disciplines was too severe, and suggested a second check on the matter. On June 10 of the same year, the defendant still insisted on the original conclusion after the second check. Tian Yong filed an administrative litigation in the People's Court of Haidian District, Beijing Municipality, claiming that he has met the legal requirements to be a university graduate and it was illegal for USTB to refuse to issue graduation certificate and degree certificate to him.         
 1998年6月,田永所在院系向被告报送田永所在班级授予学士学位表时,被告有关部门以田永已按退学处理、不具备北京科技大学学籍为由,拒绝为其颁发毕业证书,进而未向教育行政部门呈报田永的毕业派遣资格表。田永所在院系认为原告符合大学毕业和授予学士学位的条件,但由于当时原告因毕业问题正在与学校交涉,故暂时未在授予学位表中签字,待学籍问题解决后再签。被告因此未将原告列入授予学士学位资格的名单交该校学位评定委员会审核。因被告的部分教师为田永一事向原国家教委申诉,国家教委高校学生司于1998年5月18日致函被告,认为被告对田永违反考场纪律一事处理过重,建议复查。同年6月10日,被告复查后,仍然坚持原结论。田永认为自己符合大学毕业生的法定条件,北京科技大学拒绝给其颁发毕业证、学位证是违法的,遂向北京市海淀区人民法院提起行政诉讼。
Judgment         
 裁判结果
On February 14, 1999, the People's Court of Haidian District, Beijing Municipality rendered the following administrative judgment (No. 00142 [1998], First, Administrative Division, Haidian):         
 北京市海淀区人民法院于1999年2月14日作出(1998)海行初字第00142号行政判决:
1. USTB shall, within 30 days as of the date when this Judgment comes into force, issue the university graduation certificate to Tian Yong;         
 一、北京科技大学在本判决生效之日起30日内向田永颁发大学本科毕业证书;
2. USTB shall, within 60 days as of the date when this Judgment comes into force, organize the relevant college and department and its Academic Degree Evaluation Committee to examine Tian Yong's qualification for the bachelor's degree;         
 二、北京科技大学在本判决生效之日起60日内组织本校有关院、系及学位评定委员会对田永的学士学位资格进行审核;
3. USTB shall, within 30 days as of the date when this Judgment comes into force, perform the duty of reporting the relevant formalities of the graduation dispatch of Tian Yong to the local administrative department of education; and         
 三、北京科技大学于本判决生效后30日内履行向当地教育行政部门上报有关田永毕业派遣的有关手续的职责;
4. Tian Yong's other claims shall be dismissed. After this Judgment was pronounced, USTB appealed. On April 26, 1999, the No. 1 Intermediate People's Court of Beijing Municipality rendered an administrative judgment (No. 73 [1999], Final, Administrative Division, No. 1 IPC, Beijing) to dismiss the appeal and affirm the original judgment.         
 四、驳回田永的其他诉讼请求。北京科技大学提出上诉,北京市第一中级人民法院于1999年4月26日作出(1999)一中行终字第73号行政判决:驳回上诉,维持原判。
Judgment's Reasoning         
 裁判理由
In the effective judgment, the court held that: In accordance with the laws and regulations of China, an institution of higher education has the authority to conduct school roll administration, grant awards, or impose sanction on educatees and has the functions of issuing academic certificates and degree certificates to educatees on behalf of the State. The relationship between an institution of higher education and an educatee is educational administration. Where the educatee raises an objection to the administrative behavior of the institution of higher education involving the basic rights of the educatee, the educatee has the right to file an administrative litigation and the institution of higher education is the eligible defendant in the administrative litigation.         
 法院生效裁判认为:根据我国法律、法规规定,高等学校对受教育者有进行学籍管理、奖励或处分的权力,有代表国家对受教育者颁发学历证书、学位证书的职责。高等学校与受教育者之间属于教育行政管理关系,受教育者对高等学校涉及受教育者基本权利的管理行为不服的,有权提起行政诉讼,高等学校是行政诉讼的适格被告。
An institution of higher education has corresponding education autonomy according to the law, has the right to formulate school disciplines and rules, and has the right to conduct teaching administration and impose sanction on students for their violation of disciplines; however, the school disciplines and rules it has formulated and the teaching administration and punishment imposed on students for their violation of disciplines based thereon must comply with laws, regulations, and rules and must respect and protect the lawful rights and interests of the parties. In this case, the plaintiff's act of carrying a scrip in the make-up examination was a violation of examination room disciplines and the defendant may impose sanction on the plaintiff in accordance with the relevant laws, regulations, rules and the relevant provisions of USTB; however, the defendant made a decision on ordering the plaintiff to leave school in accordance with No. 068 Notice as formulated by USTB, which was contrary to the statutory conditions for leaving school as prescribed in Article 29 of the Provisions on the Administration of Students in Regular Institutions of Higher Education. Therefore, it was illegal for the defendant to make the decision on ordering the plaintiff to leave school.         
 高等学校依法具有相应的教育自主权,有权制定校纪、校规,并有权对在校学生进行教学管理和违纪处分,但是其制定的校纪、校规和据此进行的教学管理和违纪处分,必须符合法律、法规和规章的规定,必须尊重和保护当事人的合法权益。本案原告在补考中随身携带纸条的行为属于违反考场纪律的行为,被告可以按照有关法律、法规、规章及学校的有关规定处理,但其对原告作出退学处理决定所依据的该校制定的第068号通知,与《普通高等学校学生管理规定》第二十九条规定的法定退学条件相抵触,故被告所作退学处理决定违法。
The decision on ordering the plaintiff to leave school involved the plaintiff's right of being educated. In order to fully guarantee the rights and interests of the party concerned, the defendant should serve and declare the decision upon the party concerned and should permit the party concerned to propose defending opinions on the basis of the principle of due process; however, the defendant did not handle the matter in compliance with this principle, nor did it actually handle the formalities of deregistering the plaintiff's name from the school roll and rearranging his residential registration or personal file. In September 1996 when the plaintiff lost his student card, the defendant reissued a new one to the plaintiff and registered his name. This factual behavior should be deemed as the defendant having modified the original decision on ordering the plaintiff to leave school and resumed the plaintiff's name in the school roll. Moreover, under the arrangements of the defendant, the plaintiff completed four years of courses in USTB, attended appraisal, practice and graduation design, and passed the oral defense of his thesis. Although the aforesaid acts were committed by the defendant and some teachers of the college and department where the plaintiff studied, they were the exercise of functions and powers. Therefore, the defendant should bear the legal consequence arising from the aforesaid acts.         
 退学处理决定涉及原告的受教育权利,为充分保障当事人权益,从正当程序原则出发,被告应将此决定向当事人送达、宣布,允许当事人提出申辩意见。而被告既未依此原则处理,也未实际给原告办理注销学籍、迁移户籍、档案等手续。被告于1996年9月为原告补办学生证并注册的事实行为,应视为被告改变了对原告所作的按退学处理的决定,恢复了原告的学籍。被告又安排原告修满四年学业,参加考核、实习及毕业设计并通过论文答辩等。上述一系列行为虽系被告及其所属院系的部分教师具体实施,但因他们均属职务行为,故被告应承担上述行为所产生的法律后果。
The State applies a system of academic certificates. As an institution of higher education established upon approval of the State, the defendant should issue corresponding education certificates to an educatee who had his or her name in the school roll, finished the regular education and study, reached the corresponding level, and met the corresponding requirements so as to acknowledge the corresponding education background that the educatee had. The plaintiff satisfied the aforesaid requirements for graduates of institutions of higher education. The defendant should, in accordance with the provisions of item (5), paragraph 1 of Article 28 of the Education Law of the People's Republic of China and Article 35 of the Provisions on the Administration of Students in Regular Institutions of Higher Education, issue the university graduation certificate to the plaintiff.         
 国家实行学历证书制度,被告作为国家批准设立的高等学校,对取得普通高等学校学籍、接受正规教育、学习结束达到一定水平和要求的受教育者,应当为其颁发相应的学业证明,以承认该学生具有的相当学历。原告符合上述高等学校毕业生的条件,被告应当依《中华人民共和国教育法》第二十八条第一款第五项及《普通高等学校学生管理规定》第三十五条的规定,为原告颁发大学本科毕业证书。
The State applies a system of academic degree. The degree certificate is a measure for evaluating an individual's academic level. As an institution of higher education authorized by the State to confer the bachelor's degree, the defendant should, by following the statutory procedures, confer persons who have reached a certain academic level or professional technology level the corresponding academic degrees and issue degree certificates to them. In accordance with the requirements of statutory procedures for issuing a certificate of the bachelor's degree as prescribed in Article 4, Article 5, and item (3) of Article 18 of the Interim Measures for the Implementation of the Regulations of the People's Republic of China on Academic Degrees, the defendant should first organize the relevant college and department to examine the plaintiff's graduation academic performance, graduation appraisal, and other documents, so as to determine whether the plaintiff has mastered basic theories, professional knowledge, and basic skills of the subject and whether the plaintiff has possessed the preliminary capabilities of engaging in scientific researches or undertaking special technical work; and then decide whether it would nominate the plaintiff to be listed in recipients of the bachelor's degree to the Academic Degree Evaluation Committee. After the Academic Degree Evaluation Committee examined the list, the defendant should confer the bachelor's degree to the plaintiff.

 国家实行学位制度,学位证书是评价个人学术水平的尺度。被告作为国家授权的高等学校学士学位授予机构,应依法定程序对达到一定学术水平或专业技术水平的人员授予相应的学位,颁发学位证书。依《中华人民共和国学位条例暂行实施办法》第四条、第五条、第十八条第三项规定的颁发学士学位证书的法定程序要求,被告首先应组织有关院系审核原告的毕业成绩和毕业鉴定等材料,确定原告是否已较好地掌握本门学科的基础理论、专业知识和基本技能,是否具备从事科学研究工作或担负专门技术工作的初步能力;再决定是否向学位评定委员会提名列入学士学位获得者的名单,学位评定委员会方可依名单审查通过后,由被告对原告授予学士学位。
     
     
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