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Tian Yong vs. University of Science and Technologies of Beijing (Administrative Lawsuit on Refusal to Issue the Graduation Certificate and the Academic Degree Certificate)
田永诉北京科技大学拒绝颁发毕业证、学位证行政诉讼案
【法宝引证码】

Tian Yong vs. University of Science and Technologies of Beijing (Administrative Lawsuit on Refusal to Issue the Graduation Certificate and the Academic Degree Certificate)
(Administrative Lawsuit on Refusal to Issue the Graduation Certificate and the Academic Degree Certificate)
田永诉北京科技大学拒绝颁发毕业证、学位证行政诉讼案

Tian Yong vs. University of Science and Technologies of Beijing
(Administrative Lawsuit on Refusal to Issue the Graduation Certificate and the Academic Degree Certificate)

 

田永诉北京科技大学拒绝颁发毕业证、学位证行政诉讼案

BASIC FACTS 
Plaintiff: Tian Yong, male, student of Grade 94 of Department of Physical Chemistry of the Application Science Institute, University of Science and Technologies of Beijing 原告:田永,男,北京科技大学应用科学学院物理化学系94级学生。
Authorized agents:
Ma Huaide, lawyer of Datong-Zhengda Law Firm, Beijing
 委托代理人:马怀德,北京市大通--正达律师事务所律师。
Sun Yashen, lawyer of Tong Zheng Law Firm, Beijing 委托代理人:孙雅申,北京市通正律师事务所律师。
Defendant: University of Science and Technologies of Beijing 被告:北京科技大学。
Legal representative: Yang Tianjun, president 法定代表人:杨天钧,校长。
Authorized agents:
Zhang Feng, associate professor of China University of Political Science and Law
 委托代理人:张锋,中国政法大学副教育。
Li Mingying, director of the President's Office of University of Science and Technologies of Beijing 委托代理人:李明英,北京科技大学校长办公室主任。
The plaintiff, Tian Yong (hereinafter referred to as Tian), brought an administrative lawsuit at the People's Court of Haidian District, Beijing Municipality (hereinafter referred to as Haidian Court) against University of Science and Technologies of Beijing (hereinafter referred to as USTB) claiming that he himself have met the legal requirements to be a university graduate, and USTB is illegal to refuse to issue the graduation certificate and the academic degree certificate to him. 原告田永认为自己符合大学毕业生的法定条件,被告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。
Tian claimed: I have been studying in USTB and have attended all the activities organized by it as a formal student in USTB. In addition, I have finished the teaching plans of USTB, and my academic performance and graduation thesis have reached the level of a graduate of a university. However, it was not until graduation that USTB notified my department of refusing to issue the graduation certificate and the academic degree certificate to me and to handle the formalities of graduation dispatch for me with the reason that I did not have my name registered in the school roll. USTB's act had violated legal provisions. Tian requested Haidian Court to rule that USTB should: 1. issue the graduation certificate and the academic degree certificate to me; 2. handle the formalities of graduation dispatch for me timely and effectively; 3. compensate me 3,000 Yuan of economic losses; 4. apologize to him and rehabilitate his reputation publicly through the school newspaper; 5. bear the litigation fee for this case. 原告诉称:我一直以在校生身份在被告北京科技大学参加学习和学校组织的一切活动,完成了学校制定的教学计划,并且学习成绩和毕业论文已经达到高等学校毕业生水平。然而在临近毕业时,被告才通知我所在的系,以我不具备学籍为由,拒绝给我颁发毕业证、学位证和办理毕业派遣手续。被告的这种作法违背了法律规定。请求判令被告:一、为我颁发毕业证、学位证;二、及时有效地为我办理毕业派遣手续;三、赔偿我经济损失3000元;四、在校报上公开向我赔礼道歉,为我恢复名誉;五、承担本案诉讼费。
USTB contended: Tian violated USTB's provisions in Urgent Circular on Strictly Managing Examinations (hereinafter referred to as Circular No. 068) by secretly carrying a scrip with electromagnetics formulas on it when attending a makeup examination, and was noticed by the invigilators. USTB then decided that Tian should leave school, and notified the relevant departments of USTB to handle the formalities of Tian's leaving school. The notice to Tian himself was also served to Tian's institute through the mailbox in USTB. Accordingly, Tian's name had been removed from the school roll. Due to such reasons that Tian did not cooperate in the handling of relevant formalities, some departments of USTB had not completed their work, and some teachers did not know about the facts, Tian was able to continue to study in USTB after having left school. However, the acquiescence of some departments of USTB and some teachers in Tian's continuing to study in USTB could not represent USTB's intent, nor could it prove that Tian's name in the school roll had been restored. If his name is not in the school roll, a student should not be qualified to graduate from a university. USTB's refusal to issue the graduation certificate and the academic degree certificate to Tian and not handling the formalities of graduation dispatch were correct. Haidian Court should reject Tian's litigation claims in accordance with the law. 被告辩称:原告田永违反本校《关于严格考试管理的紧急通知》(以下简称068号通知)中的规定,在补考过程中夹带写有电磁学公式的纸条被监考教师发现,本校决定对田永按退学处理,通知校内有关部门给田永办理退学手续。给田永本人的通知,也已经通过校内信箱送达到田永所在的学院。至此,田永的学籍已被取消。由于田永不配合办理有关手续,校内的一些部门工作不到位,再加上部分教职工不了解情况等原因,造成田永在退学后仍能继续留在学校学习的事实。但是,校内某些部门及部分师默许田永继续留在校内学习的行为,不能代表本校意志,也不证明田永的学籍已经恢复。没有学籍就不具备高等院校大学生的毕业条件,本校不给田永颁发毕业证、学位证和不办理毕业派遣手续,是正确的。法院应当依法驳回田永的诉讼请求。
PROCEDURAL POSTURE 
It was verified by Haidian Court through the trial: 北京市海淀区人民法院经审理查明:
In September 1994, Tian entered the Department of Physical Chemistry of the Application Science Institute of USTB and was registered in the school roll of undergraduates. On February 29, 1996, Tian 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 noticed by the invigilators. Although the invigilators did not notice that Tian had the act of peeping at the scrip, they still immediately stopped Tian from taking the examination according to examination room disciplines. On March 5 of the same year, USTB ascertained that Tian's act was cheating in the examination in accordance with the provisions in Item 5 of Article 3, “Circular No. 068” concerning “those who carry scrips secretly, including those who cheat in the examination by writing down something on hand, etc.”, and decided that Tian must school in accordance with the provisions in Article 1 that “Any student who has cheated in the examination shall leave school”. On April 10, USTB filled out and issued a notice for change of the school roll. However, USTB did not directly declare to Tian the disciplinary measure against him or serve the notice for change of the school roll to him, nor did it handle the formalities of Tian's leaving school. Thus Tian was able to continue to attend normal study and the activities organized by USTB with his identity to be a student in USTB. 1994年9月,原告田永考入被告北京科技大学下属的应用科学学院物理化学系,取得本科生学籍。1996年2月29日,田永在参加电磁学课程补考过程中,随身携带写有电磁学公式的纸条,中途去厕所时,纸条掉出,被监考教师发现。监考教师虽未发现田永有偷看纸条的行为,但还是按照考场纪律,当即停止了田永的考试。北京科技大学于同年3月5日按照“068号通知”第三条第五项关于“夹带者,包括写在手上等作弊行为者”的规定,认定田永的行为是考试作弊,根据第一条“凡考试作弊者,一律按退学处理”的规定,决定对田永按退学处理,4月10日填发了学籍变动通知。但是,北京科技大学没有直接向田永宣布处分决定和送达变更学籍通知,也未给田永办理退学手续。田永继续在该校以在校大学生的身份参加正常学习及学校组织的活动。
In March 1996, Tian lost his student card, and did not fulfill the registration for the second semester of the academic year from 1995 to 1996. In September of the same year, USTB re-issued a student card to Tian. In each academic year after that, USTB accepted the education fee paid by Tian, registered Tian's name, granted undergraduate subsidies to Tian, and arranged Tian to attend the practical design for university graduates, with the completion fee for graduation design granted by USTB and obtained by the supervising teacher of the thesis. Tian 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. During the 4 years of study in USTB, Tian's academic performance was qualified for all subjects, and he passed the graduation practice, design and oral defense of his thesis. He was also awarded excellent in his graduation thesis and his total academic performance ranked ninth among the whole class. USTB admitted the above facts. 1996年3月,原告田永的学生证丢失,未进行1995至1996学年第二学期的注册。同年9月,被告北京科技大学为田永补办了学生证。其后,北京科技大学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,还安排田永参加了大学生毕业实习设计,并由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。田永在该校学习的4年中,成绩全部合格,通过了毕业实习、设计及论文答辩,获得优秀毕业论文及毕业总成绩全班第九名。北京科技大学对以上事实没有争议。
Some teachers in USTB had appealed to the former State Education Commission for the matter of Tian's name in the school roll, and the Department for Students in Higher Education Institutions of the former State Education Commission wrote a letter to USTB on May 18, 1998, saying that USTB's disciplinary measure against Tian for his violation of the examination room disciplines was too severe, and suggesting a second check on the matter. On June 5 of the same year, USTB still insisted on the original conclusion on its disciplinary measure after the second check. 被告北京科技大学的部分教师曾经为原告田永的学籍一事向原国家教委申诉,原国家教委高校学生司于1998年5月18日致函北京科技大学,认为该校对田永违反考场纪律一事处理过重,建议复查。同年6月5日,北京科技大学复查后,仍然坚持原处理结论。
In June 1998, USTB's relevant department refused to issue the graduation certificate to Tian with the reason that he did not have his name in the school roll, nor did it submit the qualification form for graduation dispatch to the administrative department for education. The Application Institute where Tian studied and the Department of Physical Chemistry considered that Tian has met the requirements for university graduation and qualified to be granted a bachelor's degree. As the Institute was negotiating with USTB on the issue of Tian's name in the school roll, it did not sign for Tian temporarily when submitting to USTB the forms for the grant of bachelor's degrees of the class where Tian studied, and prepared to sign for Tian after the issue of Tian's name in the school roll had been settled. Therefore, USTB did not put Tian's name into the name list of the qualification for the grant of bachelor's degrees, which it submitted to USTB's academic degree evaluation committee for approval. 1998年6月,被告北京科技大学的有关部门以原告田永不具有学籍为由,拒绝为其颁发毕业证,进而也未向教育行政部门呈报毕业派遣资格表。田永所在的应用学院及物理化学系认为,田永符合大学毕业和授予学士学位的条件,由于学校正在与学校交涉田永的学籍问题,故在向学校报送田永所在班级的授予学士学位表时,暂时未给田永签字,准备等田永的学籍问题解决后再签,学校也因此没有将田永列入授予学士学位资格名单内交本校的学位评定委员会审核。
For this case, USTB submitted the following evidence to Haidian Court:
1. a self-criticism written by Tian on February 29, 1996 and the written testimonies of the two invigilators, which could prove the fact that Tian carried with him a scrip with contents relating to the examination subject to attend the examination but was not noticed to have peeped at it;
2. Urgent Circular on Strengthening the Management of Examinations by the former State Education Commission, Circular No. 068 issued by USTB, speech by a relevant leader of the former State Education Commission (none of these three documents was within the scope of the rules provided in Article 53 of Administrative Procedure Law of the People's Republic of China for the reference of the people's court when it is trying administrative cases);
3. a request of the Educational Administration Office of USTB for instruction on whether to order Tian and the other two students to leave school for their cheating in the examination, the terminal examination briefing, and the notice for change of the school roll, which could prove that USTB made a decision order Tian to leave school on April 10, 1996, but could not prove that the decision had been directly served to Tian or had been actually executed;
4. a letter by the Department for Students in Higher Education Institutions of the former State Education Commission, USTB's report on the result of the second check on Tian's cheating in the examination, which could prove the opinions of some teachers in USTB and the Department for Students in Higher Education Institutions of the former State Education Commission on the disciplinary measure against Tian, and USTB's attitude towards the said opinions;
5. a copy of USTB's Decision on Ordering Wang Bin (A Student in USTB) to leave School and seven copies of its Terminal Examination Briefing, which were not necessarily connected with this Case and could not become the evidence of this Case. Moreover, during the litigation, without the approval of the court, USTB collected and submitted to the court such written evidence as the testimonies of Tang Youlan and other teachers, the examination report, the bachelor's degree approval form on the graduation qualification of 1998 students, the registration card of students, the registration list of students' files, written evidence of the Office of Residential Registration of USTB's Security Department, the fourth and fifth pages of the notice for change of the school roll, the student number statistics list for Class 94 of the Inorganic Department, etc.. Since such evidence did not conform to Article 33 of the Administrative Procedure Law that “the defendant shall not, in the process of legal proceedings, collect evidence by himself from the plaintiff or witnesses”, it should not be regarded as the basis for ascertaining the facts in this Case.
 被告北京科技大学为此案向法院提交的证据有:1、原告田永于1996年2月29日写下的书面检查和两位监考教师的书面证言,这些证据能够证明田永在考试中随身携带了写有与考试科目有关内容的纸条,但没有发现其偷看的事实;2、原国家教委《关于加强考试管理的紧急通知》、校发(94)第068号《关于严格考试管理的紧急通知》、原国家教委有关领导的讲话,这三份材料不属于《中华人民共和国行政诉讼法》第五十三条规定人民法院审理行政案件时可以参照的规章范畴;3、北京科技大学教务处关于田永等三人考试过程中作弊按退学处理的请示、期末考试工作简报、学生学籍变动通知单,以上书证能够证明北京科技大学于1996年4月10日作出过对田永按退学处理的决定,但不能证明该决定已经直接送达给田永,也不能证明该决定已经实际执行;4、原国家教委高校学生司函、北京科技大学对田永考试作弊一事复查结果的报告,这些书证能够证明北京科技大学部分教师、原国家教委高校学生司对田永被处分一事的意见,以及北京科技大学在得知这两方面意见后的态度;5、北京科技大学的《关于给予北京科技大学学生王斌勒令退学处分的决定》一份、《期末考试工作简报》7份,以上书证与本案没有必然联系,不能成为本案的证据。此外,北京科技大学在诉讼期间,未经法院同意自行调取了唐有兰等教师的证言、考试成绩单、1998届学生毕业资格的学士学位审批表、学生登记卡、学生档案登记单、学校保卫处户口办公室书证、学籍变动通知单第四联和第五联、无机94班人数统计单等书证交给法院,这些证明由于不符合行政诉讼法三十三条关于“在诉讼过程中,被告不得自行向原告和证人收集证据”的规定,不能作为认定本案事实的根据。
The evidence submitted by Tian included:
1. the student card re-issued by USTB to Tian in September 1996 (with the student number to be 9411026), which could prove that USTB not only re-issued a student card to Tian in September of 1996, but also registered Tian's name in the school roll semester by semester, making him keep a name in the school roll of undergraduates in USTB;
2. a blood donation card, the re-study card, the examination permit, the receipts and documents on fees charged, the CET-4 certificate, the computer Basic language certificate, two testimonies of Tian's classmates, written evidence of the entity where Tian had practiced, written evidence on the grant of the completion fee, which could prove the relevant facts on Tian's study, examination and life under USTB's management with his identity to be a student in USTB;
3. the student academic performance report, which could prove Tian's academic performance for four years in USTB;
4. the form for recommendation of employment for graduates from common higher education institutions in Beijing, sealed by the competent department of USTB, and which could prove that USTB had acknowledged Tian to have the qualification as a graduate of the present grade;
5. an attestation of the Application Science Institute of USTB, which could prove the facts that Tian had passed all the examinations and the oral defense of his thesis, and had been qualified as a graduate in respect of the knowledge and skills grasped by him, and that once the issue of Tian's name in the school roll was settled, the Institute would sign the form for the grant of degree.
 原告田永提交的证据有:1、1996年9月被告北京科技大学为田永补办的学生证(学号为9411026),能够证明北京科技大学不仅从1996年9月为田永补办了学生证,并且还逐学期为田永进行了学籍注册,使其具有北京科技大学本科学生学籍的事实;2、献血证、重修证、准考证、收据及收费票据、英语四级证书、计算机BASIC语言证书、田永同班同学的两份证言、实习单位书证、结业费发放书证,以上证据能够证明田永在北京科技大学的管理下,以该校大学生的资格学习、考试和生活的相关事实;3、学生成绩单,能够证明田永在该校四年的学习成绩;4、加盖北京科技大学主管部门印章的北京地区普通高校毕业生就业推荐表,能够证明北京科技大学已经承认田永具备应届毕业生的资格;5、北京科技大学应用科学学院的证明,证实田永已经通过了全部考试及论文答辩,其掌握的知识和技能已具备了毕业生的资格,待田永的学籍问题解决后就为其在授予学位表上签字的事实。
During the trial, Haidian Court inquired the evidence mentioned above and submitted by both parties. 在庭审中,法院对双方当事人提交的上述证据均进行了质证。
Haidian Court was of the following opinion: 北京市海淀区人民法院认为:
In China, some public institutions and public organizations do not have the qualification as administrative organs at present, but the law grants them the power to exercise certain administrative management. The relationship between such entities or organizations and the managed persons is not the equal civil, but the special administrative. The dispute between them arising out of management was not a civil lawsuit, but an administrative lawsuit. Although the defendant mentioned in Article 25 of Administrative Procedure Law of the People's Republic of China shall be an administrative organ, in order to protect the lawful rights and interests of the managed persons and to supervise public institutions and public organizations to perform the State-authorized administering duties in accordance with the law, it would be more beneficial to settle social conflictions and maintain social stability by treating USTB as a defendant in the administrative lawsuit and settling the administrative disputes between the public institutions or public organizations and the managed persons in accordance with the Administrative Procedure Law. Article 21 of Education Law of the People's Republic of China provides: “The State applies a system of education certificates.” “Schools and other institutions of education established with the approval of or recognized by the State shall, in accordance with the relevant regulations of the State, grant educational qualification certificates or other education certificates.” Article 22 provides: “The State applies a system of academic degree.” “Entities entitled to grant academic degrees shall grant to persons who have attained the required academic or professional or technical level corresponding academic degrees and issue to them degree certificates in accordance with the law.” Article 8 of Regulations of the People's Republic of China on Academic Degrees provides: “Bachelor's degrees shall be granted by the higher education institutions which are authorized by the State Council”. In this case, USTB was a legal person engaged in the career of higher education, Tian's claim for its issuance of the graduation certificate and the academic degree certificate was exactly an administrative dispute arising out of its representing the State to exercise the administrative power of issuing education certificates and academic degree certificates to educatees, which might be settled in accordance with the Administrative Procedure Law. 在我国目前情况下,某些事业单位、社会团体,虽然不具有行政机关的资格,但是法律赋予它行使一定的行政管理职权。这些单位、团体与管理相对人之间不存在平等的民事关系,而是特殊的行政管理关系。他们之间因管理行为而发生的争议,不是民事诉讼,而是行政诉讼。尽管《中华人民共和国行政诉讼法》第二十五条所指的被告是行政机关,但是为了维护管理相对人的合法权益,监督事业单位、社会团体依法行使国家赋予的行政管理职权,将其列为行政诉讼的被告,适用行政诉讼法来解决它们与管理相对人之间的行政争议,有利于化解社会矛盾,维护社会稳定。《中华人民共和国教育法》第二十一条规定:“国家实行学业证书制度。”“经国家批准设立或者认可的学校及其他教育机构按照国家规定,颁发学历证书或者其他学业证书。”第二十二条规定:“国家实行学位制度。”“学位授予单位依法对达到一定学术水平或者专业技术水平的人员授予相应的学位,颁发学位证书。”《中华人民共和国学位条例》第八条规定:“学士学位,由国务院授权的高等学校授予”。本案被告北京科技大学是从事高等教育事业的法人,原告田永诉请其颁发毕业证、学位证,正是由于其代表国家行使对受教育者颁发学业证书、学位证书的行政权力时引起的行政争议,可以适用行政诉讼法予以解决。
The reason that Tian did not obtain the graduation certificate or the academic degree certificate issued by USTB was that USTB considered Tian had been treated as leaving school, and did not have his name in the school roll. Among the rights provided in Article 28 of the Education Law which are to be exercised by schools and other institutions of education, Item (4) clearly provides: “to manage school roll and grant awards to or take disciplinary measures against educatees”. It can be seen that the management of school roll shall also be a special administrative management applied by the school to educatees in accordance with the law. Therefore, the key for this Case was to examine whether Tian had a name in the school roll. 原告田永没有得到被告北京科技大学颁发的毕业证、学位证,起因是北京科技大学认为田永已被按退学处理,没有了学籍。教育法二十八条规定的学校及其他教育机构行使的权利中,第(四)项明文规定:“对受教育者进行学籍,实施奖励或者处分”。由此可见学籍管理也是学校依法对受教育者实施的一项特殊的行政管理。因而,审查田永是否具有学籍,是本案的关键。
Once Tian passed the examination and was admitted to USTB, he had a name in the school roll and obtained the qualification to study in USTB, and meanwhile, he should accept USTB's management. Although the educational workers have corresponding decision-making power in education when managing the educatees, they shall not violate State laws, regulations or rules. Although when Tian attended the make-up examination, he carried a scrip with contents relating to the examination, there was no evidence which could prove that he had peeped at the scrip, and his act did not constitute cheating in the examination but violation of examination room disciplines. USTB could, according to its provisions, take measures against Tian for his violation of the examination room disciplines, but such measures should be in compliance with the principles in laws, regulations and rules, and at least they should not be more severe than those provided in laws, regulations and rules. Article 12 of Provisions on the Management of Students in Common Higher Education Institutions promulgated by the State Education Commission on January 20, 1990 provides: “For any student who is absent from an examination without authorization or cheats in the examination, his score of this course shall be calculated as zero, and this student shall not be permitted to attend the make-up examination; where the student really has any behavior of repentance, he may, upon approval by the educational administration department, be given a chance to attend the make-up examination before graduation. Disciplinary measures shall be taken against any student who cheats in the examination.” Among the ten circumstances provided in Article 29 for ordering a student to leave school, there is no provision stating that he who does not abide by the examination room disciplines or cheats in the examination shall be ordered to leave school. USTB's “Circular No. 068” not only enlarged the scope of ascertainment of “cheating in the examination”, but also treated those who “cheat in the examination” in a way much more severe than those provided in Article 12 of Provisions on the Management of Students in Common Higher Education Institutions. It was also in conflict with the conditions for leaving school, which were provided in Article 29, thus it should be invalid. On the other hand, to treat a student by ordering him to leave school involves his right of being educated. In order to sufficiently guarantee the rights and interests of the party concerned, the entity that makes a decision on such disciplinary measure shall directly declare and serve the decision to the person against whom the disciplinary measure was taken, and shall permit him to propose defending opinions. However, USTB did not handle the matter in compliance with this principle, and neglected the defending right of the party concerned. Such administrative management act was not lawful. USTB actually never handled the formalities of removing Tian's name from the school roll, re-arranging his residential registration or personal file, etc.. And when Tian lost his student card, USTB re-issued a new one to him in the September of 1996 and registered his name. This fact should be regarded that USTB had automatically revoked the original decision on ordering Tian to leave school. Moreover, Tian completed four years of courses in USTB and attended the appraisal, practice and graduation design arranged by USTB, he also passed the oral defense of his thesis. All these facts proved that the decision on ordering Tian to leave school was never legally effective as it should have been, and Tian should still have his name in the school roll of USTB. USTB's contended that it was the acts of some departments and teachers in USTB that made Tian continue to study in USTB, and such acts could not represent USTB's intent. But the acts of such departments and teachers were the exercise of the functions and powers of USTB, USTB should bear the legal liability for the result caused from its functions and powers. 原告田永经考试合格,由被告北京科技大学录取后,即享有该校的学籍,取得了在该校学习的资格,同时也应当接受该校的管理。教育者在对受教育者实施管理中,虽然有相应的教育自主权,但不违背国家法律、法规和规章的规定。田永在补考时虽然携带写有与考试有关内容的纸条,但是没有证据证明其偷看过纸条,其行为尚未达到考试作弊的程度,应属于违反考场纪律。北京科技大学可以根据本校的规定对田永违反考场纪律的行为进行处理,但是这种处理应当符合法律、法规、规章规定的精神,至少不得重于法律、法规、规章的规定。国家教育委员会1990年1月20日发布的《普通高等学校学生管理规定》第十二条规定:“凡擅自缺考或考试作弊者,该课程成绩以零分计,不准正常补考,如确实有悔改表现的,经教务部门批准,在毕业前可给一次补考机会。考试作弊的,应予以纪律处分。”第二十九条规定应予退学的十种情形中,没有不遵守考场纪律或者考试作弊应予退学的规定。北京科技大学的“068号通知”,不仅扩大了认定“考试作弊”的范围,而且对“考试作弊”的处理方法明显重于《普通高等学校学生管理规定》第十二条的规定,也与第二十九条规定的退学条件相抵触,应属无效。另一方面,按退学处理,涉及到被处理者的受教育权利,从充分保障当事人权益的原则出发,作出处理决定的单位应当将该处理决定直接向被处理者本人宣布、送达,允许被处理者本人提出申辩意见。北京科技大学没有照此原则办理,忽视当事人的申辩权利,这样的行政管理行为不具有合法性。北京科技大学实际上从未给田永办理过注销学籍,迁移户籍、档案等手续。特别是田永丢失学生证以后,该校又在1996年9月为其补办了学生证并注册,这一事实应视为该校自动撤销了原对田永作出的按退学处理的决定。此后发生的田永在该校修满四年学业,还参加了该校安排的考核、实习、毕业设施,其论文答辩也获得通过等事实,均证明按退学处理的决定在法律上从未发生过应有的效力,田永仍具有北京科技大学的学籍。北京科技大学辩称,田永能够继续在校学习,是校内某些部门及部分教师的行为,不能代表本校意志。鉴于这些部门及部分教师的行为,都是北京科技大学的职务行为,北京科技大学应当对该职务行为产生的后果承担法律责任。
The State applies a system of education certificates. Since Tian had his name in USTB's school roll, when Tian had finished the regular education and study and had reached the educational qualification level and met the corresponding requirements, USTB as a higher education institution established upon approval of the State should, in accordance with Item 5 of Paragraph 1 of Article 28 of the Education Law and Article 35 of Provisions on the Management of Students in Common Higher Education Institutions, issue the corresponding education certificate to Tian, so as to acknowledge the corresponding educational qualification that he had. 国家实行学业证书制度。原告田永既然具有北京科技大学的学籍,在田永接受正规教育、学习结束并达到一定学历水平和要求时,北京科技大学作为国家批准设立的高等学校,应当依照教育法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,给田永颁发相应的学业证明,以承认其具有的相当学历。
The State applies a system of academic degree. Tian was an undergraduate, and should, in accordance with Article 4 of Regulations of the People's Republic of China on Academic Degrees, be granted the bachelor's degree after his graduation. USTB as an institution authorized by the State to grant bachelor's degrees shall, in accordance with the procedures provided in Article 4 and Article 5 of Interim Measures for the Implementation of Regulations of the People's Republic of China on Academic Degrees, organize the relevant people to examine Tian's graduation academic performance, graduation appraisal and other documents, so as to decide whether to grant him the bachelor's degree. 国家实行学位制度。原告田永是大学本科生,在其毕业后,按照《中华人民共和国学位条例》第四条的规定,可以授予学士学位。被告北京科技大学作为国家授权的学士学位授予机构,应当依照《中华人民共和国学位条例暂行实施办法》第四条、第五条规定的程序,组织有关人员对田永的毕业成绩、毕业鉴定等材料进行审核,以决定是否授予其学士学位。
As for the issue on the dispatch of graduates from higher education institutions, the Graduate Cards for Employment Dispatch and Registration were issued by the department in charge of the dispatch of graduates under each province, autonomous region or municipality directly under the Central Government according to the employment plans made by the administrative department for education. A common higher education institution shall, in accordance with Article 9 of Interim Provisions on the Work of Employment of Graduates from Common Higher Education Institutions, perform the duty of reporting the relevant documents of graduates to the administrative department for education at its locality, so that the local administrative department for education may examine and issue the graduation dispatch cards. After Tian was qualified to graduate from USTB, USTB should certainly perform the duty mentioned above. 关于高等院校毕业生派遣问题。《毕业生就业派遣报到证》,是各省、自治区、直辖市主管毕业生调配的部门教育行政部门下达的就业计划签发的。普通高等学校根据《普通高等学校毕业生就业工作暂行规定》第九条的规定,应当履行将毕业生的有关资料上报所在地的教育行政主管部门的职责,以供当地教育行政部门审查和颁发毕业派遣证。原告田永取得大学毕业资格后,被告北京科技大学理应履行上述职责。
The scope of administrative compensation provided in Article 3 and Article 4 of Law of the People's Republic of China on State Compensation only includes the actual infringements upon the personal right or property right of the aggrieved person by illegal administrative acts. At present, the State applies an employment policy of bi-directional choices to the job assignment to university graduates. One may not find a job and get income immediately after graduation. Therefore, USTB's refusal to issue the certificates did not cause any actual loss to Tian's personal right or property right but made him lose the opportunity to be employed at the same time as his classmates. Therefore, Tian's claim that USTB should compensate him for the economic losses for not issuing the graduation certificate on time thus causing him to suffer from losses in vested interests should not be tenable. 中华人民共和国国家赔偿法》第三条、第四条规定的行政赔偿范围,只包括违法行政行为对受害人人身权或者财产权造成的实际侵害。目前,国家对大学生毕业分配实行双向选择的就业政策,并非学生毕业后就能找到工作,获得收入。因此,被告北京科技大学拒绝颁发证书的行为,只是使原告田永失去了与同学同期就业的机会,并未对田永的人身权和财产权造成实际损害。故田永以北京科技大学未按时颁发毕业证书致使其既得利益受到损害为由提出的赔偿经济损失主张,不能成立。
Tian had violated the examination room disciplines in the examination, on the basis of which USTB made the decision of ordering Tian to leave school. Although this decision could not be tenable, it did not damage Tian's right of reputation. Therefore, Tian's request to the court for ruling USTB to apologize to him and rehabilitate his reputation through the school newspaper should not be supported. 原告田永在考试中有违反考场纪律的行为,被告北京科技大学据此事实对田永作出的按退学处理的决定虽然不能成立,但是并未对田永的名誉权造成损害。因此,田永起诉请求法院判令北京科技大学在校报上向其赔礼道歉,为其恢复名誉,不予支持。
Therefore, Haidian Court rendered the following judgment on February 14, 1999: 综上,北京市海淀区人民法院于1999年2月14日判决:
I. USTB should, within 30 days as of the date when this Judgment comes into force, issue the university graduation certificate to Tian; 
II. USTB should, within 60 days as of the date when this Judgment comes into force, convene its academic degree evaluation committee to examine Tian's qualification for the bachelor's degree; 一、被告北京科技大学在本判决生效之日起30日内向原告田永颁发大学本科毕业证书;
III. USTB should, 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 to the local administrative department for education; 二、被告北京科技大学在本判决生效之日起60日内召集本校的学位评定委员会对原告田永的学士学位资格进行审核;
IV. Tian's other litigation claims should be rejected. 三、被告北京科技大学于本判决生效之日起30日内履行向当地教育行政部门上报原告田永毕业派遣的有关手续的职责;
After the judgment of the first instance was pronounced, USTB filed an appeal, the reasons are: 1. Tian's name had been removed from the school roll, and the facts were wrongly ascertained in the judgment of the first instance, which ascertained that USTB had changed the decision on the disciplinary measure against Tian and had restored his name in the school roll; 2. the rules and disciplines made by USTB in accordance with the law, and the disciplinary measures taken on the basis of which by USTB against any student concerned should be within the scope of decision-making power on running the school, and no organization or individual should interfere with them with any reason; 3. the evidence which was collected from the teaching files and submitted by USTB to Haidian Court should not be the illegally collected evidence, and the court should adopt it. USTB requested the court of the second instance to rescind the original judgment and reject Tian's litigation claims. 四、驳回原告田永的其它诉讼请求。
JUDGMENT'S REASONING 第一审宣判后,北京科技大学提出上诉。理由是:1、田永已被取消学籍,原判认定我校改变了对田永的处理决定,恢复了其学籍,是认定事实错误;2、我校依法制定的校规、校纪及依据该校规、校纪对所属学生作出处理,属于办学自主权范畴,任何组织和个人不得以任何理由干预;3、我校向一审提交的从教学档案中提取的证据,不属于违法取证,法院应予采信。请求二审撤销原判,驳回田永的诉讼请求。
The No. 1 People's Court of Beijing Municipality (hereinafter referred to as the Intermediate Court) was of the opinion through the trial that in the first instance, the facts were clearly ascertained, the evidence was sufficient, the law was correctly applied, and the trial procedures were lawful, thus the original judgment should be sustained. USTB's claim that Tian did not have his name in the school roll did not conform to the fact, and should not be adopted. As authorized by the State, an education institution shall have the rights to make rules and disciplines, to carry out teaching management on students and to take measures against those who violate disciplines, however, the made rules and disciplines as well as the teaching management and measures against those who violate the disciplines must conform to the laws, regulations and rules, and must protect the lawful rights and interests of the parties concerned. USTB's treatment to Tian by ordering him to leave school was in violation of laws, regulations and rules, and should be invalid. Although the evidence collected from the teaching files and submitted by USTB in the lawsuit was not under the circumstances provided in Article 33 of the Administrative Procedure Law that the defendant shall not, in the process of legal proceedings, collect evidence by himself from the plaintiff or witnesses, the court could still not ascertain USTB's evidence since it was impossible to prove that the evidence was formed at the time the decision of ordering Tian to leave school was made. Therefore, the Intermediate Court rendered the following judgment on April 26, 1999 in accordance with Item (1) of Article 61 of the Administrative Procedure Law: 
JUDGMENT 北京市第一中级人民法院经审理认为,原判认定事实清楚、证据充分,适用法律正确,审判程序合法,应当维持。上诉人北京科技大学认为被上诉人田永已不具有该校学校,与事实不符,不予采纳。学校依照国家的授权,有权制定校规、校纪,并有权对在校学生进行教学管理和违纪处理,但是制定的校规、校纪和据此进行的教学管理和违纪处理,必须符合法律、法规和规章的规定,必须保护当事人的合法权益。北京科技大学对田永按退学处理,有违法律、法规和规章的规定,是无效的。北京科技大学在诉讼中提交的从教学档案中调取的证据,虽然不属于行政诉讼法三十三条规定的被告不得在诉讼过程中自行向原告和证人收集证据的情况,但是由于无法证明这些证据是在作出按退学处理的决定时形成的,故法院不予认定。据此,北京市第一中级人民法院依照行政诉讼法第六十一条第(一)项的规定,于1999年4月26日判决:
the appeal should be rejected and the original judgment sustained.

 
 驳回上诉,维持原判。
 

     
     
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