At present, China has promulgated the Law on the Protection of Minors in People's Republic of China (PRC), the Law on the Prevention of Juvenile Delinquency in People's Republic of China (PRC), the Law on Compulsory Education and other laws, all of which have certain protection for minors' right to education. Article 46 of China's current Constitution stipulates that People's Republic of China (PRC) citizens have the right and obligation to receive education, and the state carries out moral cultivation for teenagers, teenagers and children. The Law on the Protection of Minors protects minors' right to education with a large number of provisions. Article 3 of the General Principles stipulates that the state, society, schools and families shall educate minors in ideals, morality, culture, discipline and legal system, patriotism, collectivism and internationalism, and * * * productism, advocate the public morality of loving the motherland, people, labor, science and socialism, and oppose capitalism, feudalism and other decadent ideas; In particular, Article 13 of Chapter III "School Protection" stipulates that schools should fully implement the national education policy and provide moral, intellectual, physical, aesthetic, labor, social life guidance and adolescent education for underage students. Schools should care about and care for students; Students with shortcomings in conduct and difficulties in learning should be patiently educated, helped and not discriminated against. Article 14 Schools shall respect the right to education of minor students, and shall not arbitrarily expel minor students. Fifteenth school and kindergarten staff should respect the personal dignity of minors, and may not impose corporal punishment, disguised corporal punishment or other acts that insult the personal dignity of underage students and children. Sixteenth schools shall not allow underage students to engage in activities that endanger personal safety and health in school buildings and other educational and teaching facilities. No organization or individual may disturb the teaching order, occupy or destroy school buildings, houses and equipment. Seventeenth schools and kindergartens to arrange for underage students and children to participate in collective activities such as assembly, cultural entertainment, social practice, etc., should be conducive to the healthy growth of minors and prevent personal safety accidents. Eighteenth in accordance with the relevant provisions of the state to send minors to receive compulsory education, reform school should carry out ideological education, cultural education, labor and technical education and vocational education. The staff of the work-study school should care for, love and respect the students, and shall not discriminate against or exclude them. Nineteenth kindergartens should do a good job in conservation and education to promote the harmonious development of children in physical, intellectual and moral aspects. From beginning to end, the Compulsory Education Law has legal norms to protect minors' right to education. In order to actively promote the implementation of these laws, various localities have also issued relevant implementation regulations. These laws have effectively promoted the legal protection of minors' right to education in China.

(2) Existing problems

Judging from the implementation of these laws, the effect is not optimistic. Nowadays, the competition for talents among countries in the world is becoming increasingly fierce. At present, although the Chinese government has begun to pay attention to strengthening the investment in talents, it is clearly pointed out that the annual education expenditure will increase by an average of 2-3 percentage points in the future. But this is far from fundamentally reversing the backward education in China. Among the minors who receive nine-year compulsory education in China, about 500 thousand poor children drop out of school every year. After the rescue of Project Hope, about 50% students still can't resume their studies. Because of poverty, they lost the opportunity of education. Since last year, the state has implemented the policy of "two exemptions and one subsidy" for students receiving compulsory education in poverty-stricken areas in the west, that is, tuition fees and textbook fees are exempted and living expenses are subsidized. But cost of living allowance is very low. For poor students, living expenses are their biggest expense. Once the living expenses are gone, you still face dropping out of school. The overall level of popularizing nine-year compulsory education in rural areas is not high and the development is uneven. Of the 286 1 county-level units in China, 23 1 county-level units still have not achieved the "universal nine-year compulsory education". The dropout rate of some rural junior high school students who have completed nine years of general education is still high. The dropout rate of rural junior high school students in some provinces is above 5%, and in some areas it is about 15%. In addition, the right to education of migrant school-age minors has not been effectively guaranteed. In some cities, the schooling of floating school-age minors has not been included in the local education development plan, and some public schools are reluctant to accept foreign students; Household registration management and student status management are out of touch, so it is difficult to find out the situation of floating school-age minors in the inflow area; The enrollment rate of disabled children has been very low, especially in western rural areas, where the number of special education schools is small and the quality is low, and there are no special education schools in some counties and townships, which makes the right to education of disabled minors not effectively guaranteed; The school's awareness of protecting minors is poor, and the phenomenon of insulting and corporal punishment of students can be seen everywhere, which leads to some students being tired of learning and dropping out of school; Juvenile delinquency is still outstanding, showing the characteristics of large proportion of property crimes, gang crimes, younger age, adult means and intelligence. These facts fully show that there are many weak links in the protection of minors' right to education in China, and there are still many places to be improved.

Second, the analysis of the causes of problems

The reasons of the education management department

At present, the education level of China is lower than that of other countries in the world. According to a survey conducted by UNESCO, the proportion of China's education expenditure to GDP is only about 3% after ranking one hundred in the world. (3) China is an unbalanced country with a huge gap between the east and the west. Education in western China basically depends on government investment. Therefore, the serious shortage of educational funds and the weak educational infrastructure restrict the development of education in China. Especially in the poverty-stricken areas in the west, basic education facilities and teachers are not enough. Large classes of seventy or eighty people abound. Limited teaching resources make the quality of students' education seriously unbalanced.

Social reasons

China's population quality is low, and its understanding and compliance with national laws and regulations are relatively poor. Especially in the vast rural areas, the quality of farmers' population is not very high, and they are deeply influenced by feudal decadent ideas. The patriarchal ideology is so ingrained that underage women are deprived of the right to education. The right to education of underage girls is not guaranteed. The rural economy is developing slowly, and affected by the tide of migrant workers, some parents forcibly deprive their children of the right to education and ask their minor children to go out to work. At the same time, some negative factors in society also directly or indirectly affect minors' right to education.

(3) School reasons

There are many reasons for the school, which can be summarized as follows:

1. Under the examination-oriented education system, the school neglected the moral and legal education for minors. At present, China's college entrance examination and senior high school entrance examination are huge in scale, and the education administrative departments at all levels measure the school's performance with the college entrance examination and senior high school entrance examination rate. Therefore, the school is busy with exam-oriented education, ignoring the moral and legal education for students. So that minors can't get a good legal education. The following cases are shocking: the suspect Yu Moumou, male, Han nationality, 17 years old, junior high school culture, from Sichuan Province; Suspect Zhang, male, Han nationality, 17 years old, junior high school culture, Sichuanese, suspect Wu Moumou, male, Han nationality, 16 years old, junior high school culture, Sichuanese. Because the criminal suspect Yu Moumou lost a mobile phone, he suspected that Yu Mou and Qin Mou, who lived with him, had stolen their mobile phones, so on the evening of February 3, 2004, he gathered the criminal suspects Zhang Mou and Wu Moumou to beat the victims Yu Mou and Qin Mou who came to pick up their luggage from their dormitory and refused to let them leave. In the meantime, Yu Moumou broke Yu's head and burned Qin with cigarette butts, thus forcing the two victims to admit stealing mobile phones. The suspects Zhang and Wu helped Yu to take care of the victims Yu and Qin until the public security organ received an alarm at noon the next day and arrested three suspects. ④ Sichuan Legal News 65438+February 4, 2005.

2. The reasons of teachers' quality. Some teachers have poor legal awareness and beat, insult and hurt students at will. Some students will be insulted by teachers because of their poor grades or bad morals. Finally, they hate the school, hate the teachers, and drop out of school angrily. Some teachers misbehave and do many illegal things. According to the report of Lanzhou Morning Post on June 17, 2004, since the second half of 2003, Yang, a physical education teacher in fuxing town junior high school in Longxi County, raped 12 junior high school girls in the name of helping students to enter through the back door, and made two girls pregnant. ⑤

3. The reasons for the interests of the school. In order to pursue high enrollment rate, some schools expel some students with poor grades and prevent them from taking exams, thus forcibly depriving students of their right to education.

Third, effective measures to protect minors' right to education

(1) Families, schools and society should make joint efforts to contribute to the implementation of nine-year compulsory education.

Completing nine-year compulsory education is a basic measure to improve the quality of the Chinese nation. Due to the basic national conditions in China, compulsory education cannot be completely undertaken by the state, and families still have to bear certain expenses in helping their children complete their studies. Although since 2005, the state has implemented the policy of "two exemptions and one subsidy" for students in compulsory education in western poverty-stricken areas. But at present, students still have to bear a lot of homework and living expenses, which is unbearable for families in poor areas in the west. In addition, the lack of family discipline caused by parents' divorce, students' heavy academic burden, some teachers' lack of professional ethics, insulting and punishing students are also important reasons for the loss of some primary and secondary school students. The compulsory education system affects all aspects of society, and it needs to stipulate detailed obligations for families, schools and governments. At present, most of the relevant legal provisions are in principle. For example, the Law on the Protection of Minors stipulates: "Schools should care for and care for students; Students with shortcomings in conduct and difficulties in learning should be patiently educated and helped, and no discrimination should be allowed. (Article 13, paragraph 2) "Schools shall respect the right of underage students to receive education and shall not expel underage students at will". (Article 14); "Teaching and administrative staff in schools and kindergartens should respect the personal dignity of minors, and may not impose corporal punishment, disguised corporal punishment or other acts that insult personal dignity on underage students and children". (Article 15)

The Law on the Prevention of Juvenile Delinquency stipulates: "If a minor's parents divorce, both parties to the divorce have the obligation to educate their children, and neither party may fail to fulfill the obligation to educate their children because of divorce" (Article 2 1); "Schools should strengthen the education and management of minors with bad behavior, without discrimination" (Article 23), and so on. However, the legal responsibilities of the two laws are too brief and vague to operate. As mentioned above, it is not clear who will coordinate the implementation of the compulsory education law and how to coordinate it, which can not restrict the illegal activities of families, schools and society. In particular, the administrative responsibility of the people's governments at all levels, the main body of law enforcement, has been omitted, making it out of legal supervision. Although the principle of punishment is stipulated, it is useless to supplement it without relevant judicial interpretation. For example, in Article 48 of the Law on the Protection of Minors, only "administrative sanctions shall be given by their units or higher authorities" for the "serious" corporal punishment of some faculty members. As far as the current situation is concerned, in order to protect teachers, the punishment of education administrative departments and schools is generally mild and has not played a deterrent role in law. Article 49 of the Law on the Prevention of Juvenile Delinquency means that parents or guardians "fail to perform their guardianship duties and let minors have bad behaviors or serious bad behaviors stipulated in this Law", and only the public security organs "admonish parents or guardians and order them to be strictly disciplined". This flexible legal responsibility is simply not enough to touch the offender himself. Looking through the criminal code of our country, there is no article or paragraph that punishes parents for neglecting their duties when disciplining minors. Therefore, such laws are not enough to protect minors' right to education.

To sum up, I believe that according to the legal principle of equal opportunities for minors to receive education established by the Compulsory Education Law re-promulgated on June 29, 2006, all school-age people should be able to enter school in time to receive compulsory education, and discrimination should be avoided in the process of enrollment. No one may cause minors to drop out of school or drop out of school under any pretext. To this end, families, schools and governments at all levels should bear certain responsibilities: parents or guardians who give up the discipline of underage children just for making money and entertainment should be reprimanded and fined, and minors who live and commit crimes in society can be punished. We can learn from foreign methods of disciplining teenagers. For example, the Parental Responsibility Act implemented in many states in the United States is a good example. The American Parental Responsibility Law stipulates: "Parents who neglect their duties in the discipline of minor children can be punished by imprisonment, high fines, revocation of licenses and other penalties according to their severity." At the same time, the following provisions can be made: if a minor drops out of school due to improper discipline and arbitrary charges, the responsibility of the relevant person shall be investigated according to law, and the school shall be responsible for resuming school; If the family is in difficulty, the expenses shall be reduced or exempted; Schools should promptly report the situation of minors dropping out of school and rescue measures to the local education administrative department or the government, and those who conceal it should be given administrative sanctions. Now "key schools" and "key classes" are the products of exam-oriented education. It simply marks and ranks by scores, attaches importance to intellectual education and ignores moral education, which seriously damages the personal dignity and physical and mental health of minors. Some even run "key classes" and "cram schools" under the guise of "advanced education units" to make money. In view of this phenomenon, Article 22 of the Compulsory Education Law, which was implemented on September 1 2006, stipulates: "People's governments at or above the county level and their education administrative departments shall promote the balanced development of schools and narrow the gap between schools in running conditions. Schools shall not be divided into key schools and non-key schools, and schools shall not be divided into key classes and non-key classes." Therefore, the administrative department of education should resolutely ban this "key" phenomenon, and those who refuse to reform after repeated education will be disqualified from running a school, and those who are directly responsible will be investigated for administrative responsibility. Those who seriously disturb the teaching order may be investigated for criminal responsibility. The government has a great responsibility in safeguarding minors' right to education and cannot slack off. Government staff dereliction of duty, resulting in a large number of minors dropping out of school, dropping out of school and other serious consequences, government departments arbitrarily misappropriate education funds, default on teachers' salaries, affecting the quality of education, the main responsible person shall be investigated for administrative or criminal responsibility according to law.

(2) Strengthen legal education, curb school violence and provide a good learning environment for minors.

According to statistics, juvenile delinquency in China is on the rise. The crime of property violence is more prominent. According to the statistics of China Law Yearbook in 2005, in 2005, the number of juvenile delinquency in China exceeded100000. To give a few examples: On the evening of June 26, 2004, the suspects He Moumou, Wang Moumou, Huang Moumou and Tong Moumou were drinking together, and Wang Moumou proposed to grab some money, so the above five people went out to look for the target in the early hours of that night and came to Zhongxing Long Road in the lake. They met the victim Lin who came home from work by bike. The criminal suspect He Moumou also stabbed Lin's thigh with a fruit knife he carried with him. Five people snatched Lin's mobile phone and more than 200 yuan in cash and fled the scene. The victim Lin bled to death after being stabbed. Afterwards, the criminal suspect Zhang still let the above-mentioned criminal suspect stay in his residence while knowing that the above-mentioned criminal suspect had committed robbery. After examination, the procuratorate approved the arrest of the suspects He Moumou, Wang Moumou, Huang Moumou and Tong Moumou for robbery, and approved the arrest of the suspect Zhang for harboring. ⑥ (Yangzhou Morning Post, June 5438+February 2004 1). Many minors do not know that they have committed a crime after committing a crime, and even think it is "fun". In view of the bad consequences of exam-oriented education, it should be abandoned. Quality education pays attention to the comprehensive protection of minors' right to education, including moral education and legal education. The Law on the Prevention of Juvenile Delinquency puts legal education into the track of preventing juvenile delinquency, and makes systematic provisions on teaching plan, assessment content and organizational measures. It regards "the work effect of juvenile crime prevention education" as the important content of the school work assessment by the education administrative department (Article 8), and "legal knowledge and crime prevention education" as the content of vocational training (Article 12). To implement the legal education plan for minors, we must first improve the concept of legal education, persistently carry out lively publicity and education among minors, and resolutely punish violent crimes around the campus. At present, schools all over the country are basically equipped with vice presidents of the rule of law, but the vice presidents of the rule of law are generally served by the directors of local police stations. Because of busy work, a lot of work has not been done. As an institution sent by the Public Security Bureau, it has certain responsibilities for the legal education of minors. It is impossible for all school teachers to understand the law. Therefore, the performance of school legal education should be included in the assessment of the director of the police station who is also the vice president of the rule of law. Otherwise, the vice president of the rule of law will become a puppet.

(3) Rectify vocational and technical schools, improve the quality of running schools, and enable minors to receive good vocational training.

The socialist market economy needs not only senior talents, but also a large number of junior and intermediate talents. According to the present situation of education in China, it is impossible for all minors to receive higher education. Vocational and technical education still has broad development prospects. Because the market economy has a high demand for professional and technical strength, the education and training for the majority of minors must be forward-looking, so that minors can get a good education and master higher technology, and they can successfully find jobs in the fierce market competition, and constantly adjust themselves according to market demand to realize the integration of individuals and society. Article 37 of the Law on the Protection of Minors stipulates: "If a minor has completed compulsory education for a specified number of years and no longer studies, the relevant government departments, social organizations, enterprises and institutions shall provide vocational and technical training and create employment conditions for him according to the actual situation." Although there is no orientation for the tasks of various vocational and technical schools here. In fact, vocational and technical schools undertake the important task of professional training for minors. However, at present, these schools are unable to meet the market demand and lack competitive vitality because of aging technology or lack of teachers. Some schools that basically do not have the ability to run schools are purely for profit, and the quality is very poor, misleading children. Therefore, the state should carefully evaluate vocational and technical schools and make timely adjustments to ensure the right of minors to receive good vocational training. For those schools that fail to complete the teaching plan and training tasks according to the enrollment brochure, the victims have the right to claim compensation. The scope of compensation can include "youth lost time" and "compensation for mental damage". It is necessary to promote the rule of law and make vocational and technical schools a solid base for training all kinds of talents who adapt to the socialist market economy. The State Council has issued "the State Council's Decision on Vigorously Developing Vocational Education" [Guo Fa (2005) No.35] on October 28th, 2005. All vocational schools should take this opportunity to seriously implement the principles and policies. Strive to cultivate qualified talents. At the same time, the education administrative department should also strengthen supervision and inspection, so that the "Decision" can really play its role.

(4) rectifying the cultural market.

At present, the management of China's cultural market is very chaotic, and all kinds of audio-visual products and online games full of violence, pornography and obscenity have corroded minors. The media often reports that minors drop out of school and play truant because of their addiction to Internet cafes, which also affects the minors' right to education to some extent and leads to crimes. The provisions on the crime of spreading obscene articles in China's criminal law are not detailed, which leads to too much room for subjective imagination in execution and no distinction between those spread to minors. Therefore, the cultural market management department should intensify the investigation, close the Internet cafes that allow minors to surf the Internet in time, and impose administrative penalties such as fines, revocation of business licenses, and lifelong ban. Disseminate violent and pornographic audio-visual products and books. Depending on the degree of its influence, it shall be punished according to the crime of imparting criminal methods in the criminal law. Public security departments should also intensify the investigation and punishment of such crimes, purify the cultural market and give minors a quiet space.

(5) Introduce a legal aid system, so that more minors can get legal aid.

In order to ensure that citizens with financial difficulties get necessary legal services, China has established a legal aid system. Provisions on legal aid for minors can be found in the Criminal Procedure Law and the Regulations on Legal Aid. This system has played an important role in better protecting the legitimate rights and interests of minors, but it has also exposed many problems that need urgent attention in practice. According to the current law, the state's legal aid to minors is mainly reflected in juvenile crime cases and alimony cases. However, in real life, there are quite a few cases in which minors' right to education is violated by parents' abuse, abandonment and teachers' corporal punishment. However, these cases do not belong to the scope of national legal aid. Minors often cannot effectively protect their rights because of their lack of independent financial resources, difficult family life and inability to hire lawyers. Therefore, it is urgent to improve relevant laws and regulations and establish an independent legal aid system for minors. It is suggested that the legal aid system for minors should be brought into the juvenile justice system as an independent system. The content of legal aid is stipulated in the Law on the Protection of Minors, the Law on the Prevention of Juvenile Delinquency and other special laws for the protection of minors, and all minors whose life is difficult and their right to education is violated are clearly included in the scope of legal aid protection of relevant laws and regulations. At the same time, we should improve the application procedures for legal aid for minors and expand the scope of applicants for legal aid for minors. It is suggested to make such supplementary provisions: if the legal representative (or appointed agent) of a minor is unwilling or unable to apply for legal aid on his behalf, the minor himself or other close relatives, the neighborhood (village) committee where the minor lives, the minor protection organization and other institutions have the right to apply on his behalf. Establish a special fund for legal aid for minors. The establishment of a special fund for legal aid for minors can not only provide financial guarantee for the development of legal aid for minors, but also provide some economic help for minors in urgent need. The funds for legal aid for minors mainly come from the financial support of the government, and can also accept donations from enterprises and society.

(6) Establish and improve the appeal system for minors' right to education.

At present, when minors' right to education is violated, the system of appealing to the education management department is not perfect. There is no special law to protect students' right to appeal. Especially in the vast rural areas, the quality of educators themselves is not high. For a long time, due to the influence of the traditional thought of "respecting teachers and attaching importance to teaching", students have been in a weak position in schools and teachers and become "victims". Due to the lack of understanding of education law and teacher law by society, families and teachers themselves, illegal behaviors of schools and teachers exist seriously in a certain range and often appear in newspapers. For example, taking up students' class time without authorization, asking or disguised asking students to drop out of school, and not letting students attend classes because they are late or have not finished their homework, which infringes on students' right to education; Beating students, corporal punishment or self-punishment, cleaning, doing sports, freezing, being on duty, doing homework, etc. Infringe on students' right to health; Unreasonable delay, restriction of students' legal activities, illegal search, etc. Infringe on students' personal freedom; Hiding, destroying or reading students' letters privately, revealing students' family privacy and grades at will, and infringing on students' privacy; Damage to students' property, arbitrary fines, arbitrary charges or disguised charges, asking for gifts and articles from students in disguise, infringing on students' property rights, etc. These problems are more prominent. According to the provisions of the Education Law, the Law on the Protection of Minors, the Law on the Protection of Juvenile Delinquency and the Outline of Moral Education in Middle Schools, schools and teachers must respect students' personality, right to development, right to participate in various school activities, right to invention and creation during school and right to equal study. Protect students' right to express their opinions, protect students' personality and specialty, protect students' personal privacy, and protect students' rights to health, honor and personal freedom. To achieve a certain educational effect by infringing on these rights and interests of students is actually a manifestation of educational incompetence and retrogression, rather than the content of educational rule of law and educational progress. Students are also citizens, and the Constitution stipulates citizens' right to appeal. However, for students' right to appeal, the existing laws only provide substantive provisions, without procedural explanations. There are no laws and regulations on how students exercise their right to appeal, to whom to appeal, the limitation of appeal, the time limit for responding to appeals, and how to deal with those who are still dissatisfied with the appeal results. Faced with the lack of complaint channels and the helplessness of judicial relief, most students don't know how to safeguard their rights and interests. Therefore, China should establish and improve the appeal system of minors' right to education as soon as possible, draw lessons from the structure and framework of administrative law and administrative procedure law, and introduce it in the form of special law, in which the appeal procedure is highlighted and incorporated into the propaganda responsibility of schools.

Precautions:

① China Education News, 4th edition, February 25th, 2005, 65438.

(2) China's "Pujiu" annual report, published in 2006, China Education Press, p. 76.

③ China Education News, 3rd edition, March 2006, 12.

④ Sichuan Legal News, 2nd edition, February 4, 2005, 65438.

⑤ The first edition of Lanzhou Morning News on June 17, 2004.

⑥ Yangzhou Morning News, second edition, June 65438+February 65438, 2004.

refer to

[1] Leading Group for the Prevention of Juvenile Delinquency of the Central Political and Legal Committee, Research Report on the Prevention of Idle Juvenile Delinquency [R], China Archives Publishing House: Beijing, published in 2002.

[2] the National People's Congress Standing Committee (NPCSC) Law Enforcement Inspection Team's Report on Inspection of the Implementation of the Law on the Protection of Minors in People's Republic of China (PRC), August 2005.

[3] Zhou, editor in chief. Constitution. Higher education press. First edition in February 2000.

[4] Zhou Zhen wants to be the editor in chief. Interpretation of juvenile laws and regulations. China Youth Publishing House, 200 1 edition.

[5] China Law Yearbook (2005). Law Yearbook Press. Published on June 3, 2006/kloc-0.

[6] Gao Mingxuan, Zhao Bingzhi. On criminal law series, volume 10. Law press. Published in May 2006 1.

[7] Guan Ying. Juvenile legal research library/urban juvenile crime and family. Popular Publishing House, published in May 2004.