Papers Category:Legal Papers
- Legal Theory Papers
Post Time:2007-1-19 15:08:00
[Abstract] corporal punishment on students is an illegal, violating the right to health of students, physical power, the right to personal liberty right. Undeniably, the history of corporal punishment as a phenomenon, has distant origins and development. In ancient times, private school students back no book, Mr. Da Banzai, punished by standing and so on, there are elders population of word of mouth, well known. 'Whip the name bamboo, do not fight do not read the book, No pain, no talent, a dozen points to'. This is the traditional education mode version of the Declaration of corporal punishment. In, because of the exam reasons, corporal punishment on students can be called a new guise, even harder. According to 'press digest '2003 years of June 18 reported: 2003 May 10 evening, Shaanxi Tongchuan City Yijun County board third-year junior high (1), Yang Hong and students to classes of students to take home with living expenses, the next day, he and the other 15 without permission from school principal lesson of the students were. YANG been principal seized the hair to a wall. Yang Hong has been feeling dizzy after being beaten a headache. Often in a coma early entry, but able to talk. The evening of June 8, YANG suddenly in a state of shock, respiratory arrest, blood pressure lowering, the pulse weakened, despite efforts by doctors to save, but YANG can only rely on ventilator to sustain life, was at 12:20 on June 10, 2003 Separation of Open this world. Sudden death for teenagers - horrible disaster in the hands of school principals dignified place, how shocking! Not only in mainland China, overseas and Hong Kong, Macao and Taiwan generally such a thing, Fok, a female teacher in secondary schools in order to perfect marks as a standard, Shao Yifen fustigate look at the palm of students, leading students to hand bruise, and even psychological burden on students appears excessive self-mutilation behavior. Issue in Taiwan, has triggered a great response. South Korea Education and Human Resources June 26 announced a program, for violation of school discipline of students, teachers can be carried out within the scope defined by a certain degree of punishment. Known as 'school life in the case of the provisions of signal' program for targeting primary school students in grade 4 and above and all middle school students, the program target of corporal punishment, extent, methods have done a detailed provisions. Indicates that corporal punishment in the case of the plot can be raised include: does not listen to the teacher's repeated admonition and guidance, and no reason to isolate students, attitude is not correct, more than the school under the penalty grading; the implementation of corporal punishment scene, to avoid other students, where the supervisor and the presence of live instructor circumstances; the implementation of corporal punishment to students to make clear the reasons before, and students in the physical, mental state examination, if necessary, could be postponed. The program also a tool for the conduct of corporal punishment are also provided for primary schools, junior high school students with a diameter of 1 cm and a length not exceeding 50 cm wooden sticks; pairs of high school students, clubs of about 1.5 cm in diameter in a length of not more than 60 cm. But the teachers, their hands and feet must not be a direct corporal punishment of students. With regard to the location of corporal punishment, boys can only play hip, girls will only play the thigh; the implementation of corporal punishment, no more than 10 junior and senior high, the students can not exceed 5, the level of the students in order to not leave physical signs shall prevail. Corporal punishment on students in South Korea has adopted legislation emerged, showing that corporal punishment in the world today how stubborn chronic illnesses. Search on the Internet, there are many similar examples. Canadian academics on corporal punishment on the child's future physical and mental health resulting from the world's largest survey done. Corporal punishment of children in adult drug and alcohol abuse is the possibility of twice the normal children, but also suffer from anxiety disorders, anti-behavior tendencies and greatly increased risk of depression. In this paper, the illegal nature of corporal punishment on students, the responsibility of the main problems and the types of liability issues and elaborated to identify the root causes of its existence, helping parents, schools and community to the phenomenon of corporal punishment on students to have a new and more comprehensive understanding.
Keywords: corporal punishment on students the responsibility of the universality of the reasons for the proposed
Teachers and students of personality in people strongly advocated equality today, corporal punishment - a very inconsistent with the modern civilization of the original education, reappeared. In feudal society, in order to seek fame, students are 'first cantilever, cone Ci Gu', together with the board, Mr., has become a powerful tool to win fame, when the map is 'a man be moral, just a few kilometers to heaven'. In modern society, in order to exam-oriented studies, corporal punishment on students despite repeated prohibitions, is also regarded as a good way to some people. Throughout society, the world's a matter of corporal punishment of students everywhere, the resulting consequences are heard. It is clear that corporal punishment of students has become a concern for social problems. Of corporal punishment on students not only in physical harm, more are reflected in the soul, the influence of corporal punishment on students not only in time, the more performance in the future, therefore, seriously corporal punishment on students in the legal issues, to seek legal means to curb corporal punishment on students was particularly important and urgent.
First, the universality of corporal punishment in modern China of student problems
Modern China, 'engineers of human souls' corporal punishment on students not only increase in the number of phenomena, but also a new guise, means bad, The list goes on and so forth. Weight are: to enable students to kneel down, self-slapping, Chi Shi, Tattoo and other students face a humiliating punishment; light are: fine copy, standing, facing the wall thinking before, are not allowed to school and other disciplinary measures.
In the strongly advocated the rule of law, teachers and students mutually equal personality today, who gives a teacher the students are so hurt right? Who can tolerate a teacher with such spoil the behavior of students? Why are people dare to incompatible with modern civilization, a very primitive means to carry out corporal punishment in education? An in-depth promotion of quality education today, the use of corporal punishment also shows how these teachers are kind of qualities do? The phenomenon despite repeated prohibition of corporal punishment also shows anything at all?
In the survey, there is such an 'interesting' phenomena, the daily number of students being punished, and when the educational authorities conducting whether corporal punishment or corporal punishment in disguised form a special investigation, because corporal punishment of students through the pre-warning, only a few students to answer 'a'; however, the teacher answer, there are more teachers have to answer 'a'. In fact, the vast majority of primary and secondary schools more or less, or the existence of light, or heartland of corporal punishment in the ordinary primary and secondary schools are especially common. Despite repeated orders from the leadership has repeatedly emphasized, however, still find it difficult to eliminate all corporal punishment in disguise.
As a teacher, in fact, know deep down inside 'corporal punishment on students' behavior is a mistake. But many teachers still have to use the wrong means to deal with poor performance or discipline of those poor students, with a view to achieve good results. Corporal punishment means some students may have some immediate effect of making the psychological fear they generate, thus becoming an 'obedient' child; but rebellious students took place resulting psychological, and teachers resulting sense of distance, will seriously hinder the students Learning to stimulate interest and enthusiasm, the results of corporal punishment on students buried deep pitfalls.
Nevertheless, some teachers still not willing to give up all kinds of punitive measures, as a 'quick means' to force the students to comply with the management of teachers to complete the job and so on. According to the Internet and in newspapers received information indicating that normal teachers use the most are: punishment copying, standing, knocked on the head, occasionally desperate fight among the students will be slapped, kicked Ji Jiao. The teachers to impose corporal punishment on students between colleagues is also a result of deliberate mischief-making and that 'deserve', even 'natural', few people think that teachers act of corporal punishment on students was wrong to block, but no teacher would go to 'denounce', fined The vast majority of students who are 'wrong' and will not or dare not tell their parents, so that they could not be stopped, so that makes 'corporal punishment' steadily spreading.
Second, school teachers, why should corporal punishment on students
First, some teachers stick to the traditional educational methods of feudal and hold the dignity of teachers, the concept of mischief. Corporal punishment-style education in China a long time. Ancient Chinese education and corporal punishment are actually closely linked. 'Education' as an ancient text, its structure from the 'text', from 'filial piety'. 'Man' who apprentice and learn, 'Hau' persons, obedience, learning the heart filial piety. Such as learning without 'filial piety', by the 'punishment' is a matter of course. Thus, in the sage, as in previous punished those who kneel down and naturally became the first step in repentance, ferule 'reprimanded' naturally became the logical next step. Feudal society, 'the dignity of the teaching profession' is the fundamental concept of traditional education, teachers, students have the absolute authority, students should be absolutely respectful to teachers, educators holding a ferule pointer, educated in the ferule pointer waving to accept as one's teacher those who preach, Tuition, and FAQ.
After the founding of New China, 'respect for teachers' part of the community, students, parents, the concept of 'respect for teachers love our students' is the school code of conduct for teachers and students. In fact, any concept has its own continuity, ideas about education is no exception. As the impact of traditional ideas, the teachers stressed that 'respect for teachers' multi-stressed 'Ai-sheng' less. As a result, 'the flowers of the motherland' classes interrupted, saying that small, then deserted, late, Chaozuo Ye, cheating and various acts will cause the teachers feel that their authority is challenged, that is not subject to management, and excitement over 'one time' have forgotten their own 'soul engineers' identity and forget the 'tireless in teaching' purposes, picked up the corporal punishment of this 'tradition of magic'.
Students, after all, still a child, thought simple, given careful consideration. Teachers with a sincere smile, loving care, and patient's teachings to the probation students are on the right track. Some students with poor self-control in class will tamper with, speak little, then do little tricks; some poor academic performance of students in class have not heard too much to understand, after-school the easy way Chaozuo Ye; Some of the students, or you want high scores, or the fear of performance suffers from the parents reprimanded, the examination would be cheating. The teacher's patient guidance, patient education, as received corporal punishment is sometimes not as' quick ', they will continue to speak the small words and do little tricks, the students copy work, cheating in examinations, which shows we need more teachers to the full patient education, bearing in mind' The secret to success in education lies in respect for the students, equal exchange, rather than repression, so that students are willing to learn from the heart.
The second is examination-oriented education to become part of the teachers thought the root causes of corporal punishment on students. While it is advocated that the quality of education, but the community standard for judging the merits of education, or the rate of further studies. We all know that 'quality education' for students pluses and no minuses, which will help the community, grass-roots educators and school administrators are still the same old procedures, using test scores to measure school performance and teacher work. Thus, ideas about education has changed, and educational means remains the same, and the previous exam-oriented education has no essential difference. Therefore, the principals in the management of priority is to grab new students, the rate of grasping studies, test scores, assessment became a quick success wins excellent goal. If he teaches classes in poor test scores, but just thought detrimental to the reputation of the class, degrading their own reputation, not only their own loss of face, and perhaps dismissed from school. In the scores in front, the teachers will be fierce competition is inevitable. So much psychological pressure can not help but make some poor teacher quality produce impatience, so they class the event of non-compliance with student discipline or commit other errors, normally accumulate in the heart of the anger will burst out at once, making out of senseless acts of corporal punishment on students.
Third, the concept of old-fashioned parents. Some parents point of view is: as long as the teacher dedication to teach pupils to go up, the issue of corporal punishment of students is only the minutia. Just imagine, students can obtain the focus and pay a few boards which lighter side is heavier? However, the students learn about life-long examination of paramount importance! The purpose of the teacher of the students so that students are not taught is to make him do? Over the past dozen students in the routine of Mr., the students learn well. Now, most parents would face corporal punishment on their children to take an eye open eyes closed an eye attitude. Because the students are mostly one-child, parents eager to Succeed own dismay Dehen start with tubes, the children are often afraid of the parents. Students at home, spoiled, disobedient at school. They would stand from the heart to the teacher: 'did not listen to you slap him, and as long as we did not teach the views. 'This attitude of the parents, so that teachers with a clear conscience corporal punishment on students.
Fourth, parents and teachers obey the law. 'Chinese nation of the Republic Law on the Protection of Minors' 15th reads: schools, nursery staff should respect the human dignity of minors shall not be a minor corporal punishment of students and children in the guise of corporal punishment or other degrading dignity. 'Chinese nation of the Republic of the Compulsory Education Law' provides that: prohibit insults, beatings teachers, to prohibit corporal punishment on students.
'Teaching method' 30th stipulates that: 'teachers have one of the following circumstances, by the host schools, other educational institutions or the education department be given administrative punishment or dismissal:
(A) intentionally fail to complete educational and teaching tasks, to education caused by the loss of teaching;
(B) corporal punishment on students, through education is not reform;
(C) ill-behaved, insults students, a very bad influence.
Teacher of the preceding paragraph (b) and (3) above one of the circumstances, the circumstances are serious enough to constitute a crime shall be held criminally responsible. '
In addition, the 'Education Act', 'Prevention of Juvenile Delinquency' corporal punishment by teachers of students also made a corresponding prohibition. For a long time, partly because many parents and students are not aware of these laws, on the other hand, these laws and regulations are mostly stipulated in principle there is no specific penalty for a viable so that these legal provisions operability is not strong, these The law does not receive due attention. Difficult to implement, the teacher can not play a substantive law constraints.
Three or four teachers easy to corporal punishment on students
First, just emerged from the teacher to teach a young man. Because of their young and fit, no long-term teaching experience, the students do not really understand the psychology, education, the students often lack the patience, more a lack of effective teaching methods. Students repeatedly made mistakes when they are losing patience, do not know how to make the best use, and individualized, can not help but produce irritability psychology, and then mistakenly punishment as a corrective for students in wrong way.
Second, as a class teacher's teacher. Homeroom teacher Due to his job on the bumban of student achievement and discipline, particularly valued, for fear of a small number of students in the hind legs dragged on the whole class, in particular, do not want to place a greater impact than the bad events. Detrimental to the reputation of classes or students experiencing repeated discipline will be shamed into anger, or for the performance of their own deterrent to establish his authority to take excessive behavior, such as: standing, fine copy, sarcastic satire, hands to move or 'guy'.
Third, temperament brutal teacher. As teachers of the reasons for its disposition, performance is the simple and crude.
Their lack of effective classroom management ability and lack of proper and reasonable means of disposing of accidental incidents, these teachers in classroom discipline is bound to class difficult to please everybody, the students 'troublemaker', or when you refuse to listen carefully, they do not want their own internal to find a cause, but always thought that the students well, but in order to show the dignity of their own, desperate acts of misconduct among the natural exercise of corporal punishment to maintain discipline.
Fourth, the poor performance of teaching teachers. These teachers or because of self-knowledge is not wide, or because the speech is not accustomed to rigid sense of humor, so monotonous and boring lecture method is difficult to arouse the interest of students and vitality, the process of teaching students that the uninterested and unwilling to listen carefully, resulting in this kind of discipline that leads to friction between teachers and students, will be easy to lead to corporal punishment in the event.
4, the teacher corporal punishment on students of the psychological factors
(A) the existence of individual teachers, leave things to chance
Corporal punishment of individual teachers, students, one is not devoid of its rational, thought disorder, not a legal two loss of consciousness, but there is a mind left to chance.
1, Ming secretly punished with impunity. Corporal punishment on students discipline and corporal punishment on students knowing the teachers law is no longer with the Ming, in public disciplinary approach, but privately to corporal punishment in the future check up on a dead does not acknowledge it.
2, self-righteously that well-intentioned. That corporal punishment is indeed acting in good faith, their heart is good, not a big problem behavior excesses that the key to doing it in the 'good student'.
3, from both teachers and parents say that requires more stringent control of students. Teachers think that corporal punishment on students for the teacher who since the beginning of the matter, as long as parents to teachers to express properly, corporal punishment does not matter the intention, to corporal punishment on students of teachers emboldened, to stretch the waist.
4, some teachers think that students who urge them naughty, playing a hit, give him a warning, not necessarily an accident, not to mention a lot of teachers do so are all right, how can there be so happens his luck.
(B) the existence of the school and the higher level department in charge of supervision phenomenon
The school and higher-level departments in charge of the corporal punishment on students understanding of the phenomenon that there are adverse, or for the maintenance of teacher's authority, resulting in handling cases of corporal punishment by teachers of students too broad too soft.
1, the school and higher-level authorities in order to safeguard the authority of teachers to facilitate teachers in their future work. Shield their mistakes when dealing with corporal punishment on students attitudes, leading to treatment not in place.
2, corporal punishment of students by the school and the higher authorities, parents as a strong sense of responsibility is the responsibility of students, as long as teachers could not grasp the events, teaching performance is good, corporal punishment, what is not a big problem.
3, parents and penalized students thought, 'who had to bow low Yan Xia', kids in school, the teachers did not offend a good fruit to eat, do nothing, or forget it.
(C) does not corporal punishment on students of teachers encounter in the real embarrassment
1, some teachers never corporal punishment because of students, mischievous students are not afraid of him, and even deliberately act against him, leading to classroom discipline and confusion, earnestly listening to the students affected, the students and parents think that teachers are not competent to require schools to change people to manage.
2, corporal punishment is to solve the problem trouble naughty students the most direct and quickest way. Although it is not complete, not illegal, but because schools and parents is based on the success or failure of performance, teachers receive quick but for whom. (D) Modern students 'problems' frustration many teachers
Modern students 'wrong' over the performance in: primary and secondary students as young and naive, and at home, the little emperor, 'stay' children, and the city 'movement' children are home all kinds of special reasons, lack of family a good education, to the school management difficult.
1, the students highlight the lazy disease. Some of the students lazy and not take measures to not complete the job, or even to learn. Only the teachers of these students live in tubes, in order to boost test scores. Given a lot of teachers use corporal punishment 'Regulate' motivation of students.
2, the current primary and secondary schools as at home, spoiled, headstrong indulgence, attack strongly and deliberately make trouble, against the more. Some of ignorance of the students thought the teacher is incompetent to discourage good faith that the 'fear' itself. Students bent, teachers, authority and dignity of the 'no security', the teacher reluctantly had to be taken under the most direct and simple way - corporal punishment to resolve.
(E) is also a teacher of psychological problems
Correct ideas can guide the correct actions, erroneous ideas and will act in the wrong in the farther and farther. Teachers, mental health is the basis of the work carried out education and teaching, teachers, a good inner state, can effectively promote the education and teaching. Teachers in real life due to the ideological pressure, and some teachers, psychological problems, from their state of mind, attitude, mood, etc. will be shown. Mainly are: difficult to control students from ideological confrontation, emotional aversion to, acts of hostility demonstrated against three; face unmanageable student-teacher presented herself thinking of irritability, restlessness, nervousness, emotional tension. These psychological problems can cause teachers to vent their feelings for corporal punishment on students.
5, corporal punishment of students is an offense to
Corporal punishment on students, whether a teacher is out of order to improve student achievement and maintenance of classroom discipline, or parents of students believe that 'the bottom out of a good man Polypogon', but the violence or threats of violence to other coercive means, against the student health violations, has its own illegality. Do not agree with 'pro-fight, cursing is love' of the ancient, nor agree that 'people do not sue the officer is not correcting', breaking the law will be brought to justice.
China's enactment of the law: 'The People's Republic of China Law', 'The People's Republic of China Law on the Protection of Minors', 'The People's Republic of China Compulsory Education Law', 'Law of the People's Republic of teachers', are all the illegal nature of corporal punishment of students has made a clearly defined. Whether or not produced serious consequences, acts of corporal punishment on students attribute is certainly against the law, specifically, students in the following aspects of corporal punishment violated the rights of students:
1, violated the student body right. The law: the right to refer to one of the main body according to law the right to enjoy their own body, the body of the right to enjoy the right of the law or dispose of his body, not the illegal hindering others. Corporal punishment in the case of violations of the right of the body is most prevalent, such as standing, fine copy, kneeling, pulling hair, and thugs hearts, eating its own words, twisted ears, slapping and so on, while not life-threatening students and undermine their physiological function, but the destruction of their body, constituted an offense.
2, violating the students right to health. The law: the right to health is a subject of life enjoyed by law to protect their own physiological functions of organism health. Is in a period of physical development of young people, the development of various body organs are not mature, the use of violence means corporal punishment on students, student body's organs, causing light damage, in serious cases may result in life-long disability.
3, corporal punishment and corporal punishment in disguised form the students were fined a violation of human dignity. The law: human dignity is a fundamental right of citizens. Our country's fundamental law of the 'constitution' expressly provides that 'The People's Republic of China personal dignity of citizens is inviolable. Citizens by any means is prohibited and insult, slander and false accusation. 'Teaching and learning process of corporal punishment, although the students have only scratched the skin, but its essence is an insult to teachers, students in an expression of personality, corporal punishment would hurt the students mind, this heart damage is permanent, difficult to heal, and will go to corporal punishment of students by the life of mental health.
4, corporal punishment violated the students to personal liberty. Our country's fundamental law of the 'constitutional' provisions, 'The People's Republic of China's freedom from infringement of any citizen or non-approval by the People's Procuratorate, the people's court decision, by the public security organs, from arrest, prohibited, illegal detention and unlawful deprivation or restrictions on personal freedom of citizens to prohibit the unlawful search of the body of citizens. 'Constitutional right to personal liberty is a fundamental right of citizens, students are no exception. Teaching the students standing, fine copy, kneeling, pulling hair, and thugs hearts, eating its own words, twisted ears, slapping, or the students long after school homework, facing the wall, etc., within a certain time limit the student of personal freedom, no doubt a violation of right to personal liberty of students, this is a serious offense.
5, corporal punishment violated the right to education of students. Chinese law provides for the right to education is a citizen's fundamental right. 'The People's Republic of China Constitution,' Article 46 provides that: 'The People's Republic of China citizens to education, rights and obligations. '' The People's Republic of China Law on the Protection of Minors 'Article 11 provides that:' Schools should respect the minor students right to education. ''The People's Republic of China Compulsory Education Law 'section 2,4 provides that:' the State to implement the nine-year compulsory education, national, school and family law to protect school-age children and teenagers the right to receive compulsory education. 'The teacher-student standing, fine copy, kneeling, pulling hair, and thugs hearts, eating its own words, twisted ears, slapping and so on, directly affect the students lectures; to be expelled from the classroom teachers, students fine stations, fine student and labor lectures allow students to practice, but also deprived of opportunities to students in the classroom lectures, and its essence is to make the students can not be normal lectures and activities, thereby violating the students right to education.
6, the implementation of corporal punishment corporal punishment by teachers of students the responsibility of the main
(A) corporal punishment on students result in civil liability for damages of the main
Corporal punishment, although by law disguised corporal punishment on students characterized as illegal, but corporal punishment, corporal punishment on students in disguise event still happens, gave rise to compensation for personal injury lawsuits has been increasing. In such litigation, how to determine the responsibility of the principal, in reality, to the following situations:
1, from corporal punishment on students of teachers as the main responsibility for civil damages. Because the teacher implemented a direct infringement;
2, corporal punishment of students by teachers in your school as the main responsibility. Teachers implement the behavior of the duties and assume that the school gives students the responsibility of the tube, teachers can not participate in the proceedings;
3, both teachers and schools constitute contributory infringement, schools, jointly and severally liable. Corporal punishment by teachers of students is a breach of law, bear direct responsibility; school teachers of poor supervision and inadequate protection for students, jointly and severally liable;
4, if the corporal punishment of students is purely personal behavior of teachers by teachers, I take responsibility, if the school is at fault, schools and teachers to share the responsibilities. Teachers in the implementation of the illegal people, school teachers and students at the same time a monitoring role, the school can participate in the proceedings as a third person,
In my opinion, to determine the result of corporal punishment on students leading to the main body of civil liability for damages, there must be the following considerations:
First, we must clearly define the nature of the school. The school is to train people in the education and the specialized agencies, is also a statutory place for students to cultural knowledge. 'The People's Republic of China Education Law'第三十一条 provides that: 'schools and other educational institutions have the legal conditions, since the approval of establishment or date of registration to obtain legal personality. ''Schools and other educational institutions in civil activities, legally entitled to civil rights and bear civil liability. 'From the provisions of the law can be seen that the school is the organization with legal personality. School as a legal personality of the civil subject with their activities in the civil right to be independent civil rights, but also be able to independently assume civil liability.
The second is to determine the school and the student relationship. Some people think that, according to 'The People's Republic of China Education Act,' the provisions of Article 49, the minor's parents or other guardians of their minor children should be guardians of education or any other provision of the necessary conditions for the minor's parents or other guardians shall be with the schools being guardians of education, so that the 'guardians and the school is essentially a commission between the education and management relations, which can not be equated to or instead of guardianship'. Also expressed that the minor's parents of their minor children sent to school when the responsibilities of guardianship has been transferred to the school, the school at a particular time and in the region who have custody of the duties, that is, the transfer of responsibilities has been in place .
The author believes that schools and students in the relationship is neither as some people think that is the legal guardian and ward relationship, nor is the relationship between the transfer of guardianship duties, nor the relationship between education and management commission.
1, schools and students do not apply between the guardianship. The reason is that not only the reference there is no legal basis in practice, will have a negative effect. China's law: The main duties of the guardian is the guardian of the implementation of a civil custody by legal acts; protect the personal guardian, property and other legitimate rights and interests: education and are concerned about guardian; bound by the acts of guardians, etc., by its very nature, said the school , is a mainly engaged in educational activities to teach cultural knowledge for the purpose of the specialized agencies, the law does not give schools all the duties of a guardian.
2, 'The People's Republic of China Education Law' 28th Article of the schools and other educational institutions the right to nine, the second one for the 'organizing the implementation of educational and teaching activities', the fourth requirement' of the educated to student status management the implementation of reward or punishment '. 29th Article of the schools and other educational institutions in the six obligations, including the provisions of the third 'maintenance of educators, teachers and other legitimate rights and interests of workers', these provisions clearly pointed out that schools are teaching the state's legal place of its main responsibility is to implement and manage teaching activities in schools registered students in teaching management.
3, according to China's Compulsory Education Law states: school-age children to receive education is the child's guardian of the country due to legal obligations. In other words, between the students and the school is a legal relationship between education and management is not a voluntary relationship between education and management commission.
To sum up, teaching or management in the implementation process, the schools against the legitimate rights and interests of students, they should bear legal responsibility. Since the schools and between students in education and management of a legal relationship, then, according to the general requirements of the school, teachers engaged in their daily teaching activities, the school engaged in teaching activities, corporate behavior is broken down into teaching activities of teachers to carry out duties directly to behavior, This is in line with legal provisions and the actual situation. Teachers teaching management to safeguard the normal order in violation of school rules on school discipline corporal punishment of students is the teacher on behalf of a student in school management has produced a kind of unlawful sexual excesses, the law provides for duty by the corporate responsibility act, so the school should be the official conduct of teachers bear civil liability.
(B) corporal punishment on students led the criminal responsibility of the principal for damages
Criminal subject refers to the implementation of the hazardous behavior and should bear criminal responsibility according to law. The natural attributes from the main points, the main crime, including the main two kinds of natural subjects and units. The main unit is not in the Criminal Code of universal significance, a natural person subject is of universal significance of China's criminal law of the criminal subject. Corporal punishment by teachers of students may lead to the major crimes of assault, negligence, assault, intentional infliction of injury, negligence causing death, intentionally caused the death of people and so on. According to the provisions of article 30 of the Criminal Code the spirit of the unit become a criminal subject to Criminal Law was limited, because of corporal punishment can lead to criminal responsibility of the main subject is a natural person. Supreme People's Court 'on the application of "The People's Republic of China Civil Procedure Law" a number of views on the issue' Article 42 provides that: 'legal persons or other organizations, staff members because of his actions or proceedings authorized by the act occurred, the legal persons or other organizations as parties. 'This shows that the legal representative of legal persons and other staff only through the implementation of corporate name acts performing their duties or authorized only for corporate behavior. Regardless of whether the conduct of business activities, and regardless of whether the act was lawful, shall bear civil liability by the legal person.
To sum up, teachers lead to crime because of corporal punishment on students, and its main body of criminal liability can only be teachers themselves, not the school.
7, corporal punishment students who should bear the legal liability which
(A) The administrative responsibilities
Teachers, corporal punishment on students, an offense, 'Law of the People's Republic of teachers' Article 37 provides that' teachers have one of the following circumstances, by the host schools, other educational institutions or educational administrative departments given administrative punishment or dismissal. 'In addition to the following (b), (c) outside the two situations, namely: to bear civil liability for harm to constitute a crime should be investigated for criminal responsibility other than the corporal punishment of students to their teachers, but also a certain unit of the administrative penalty, to a serious unit teachers in the management of this unit.
(B) civil liability in
1, belongs to the general common fault of corporal punishment, shall be vested for the corporate tort liability by the school.
'Civil Law' Article 106 provides instructions, legal persons will not only breach of contract or non-performance of other obligations, and violations will be implemented, which essentially confirms the legal entities and citizens have the ability to infringement, the school will bear civil liability.
School as a social organization engaged in education, its activities must be adopted by faculty and staff of each natural person who acts to achieve. Teachers, school staff, on behalf of schools to impart knowledge to students and manage students, corporal punishment on students is only a way of improper management of students. Whether civil liability, or tort, and other acts are acts of teacher positions. Of course, in addition to a very few moral turpitude who intentional injuries as an excuse to educate the students outside. Thus, corporal punishment by teachers belonging to the school behavior of students can be felt that the school is at fault, the teacher no fault of its civil liability where that course, for the school itself.
2, belonging to the common fault of the general corporal punishment, corporal punishment should be according to the fault of the teachers and schools the size of the respective responsibilities, the school should be jointly and severally liable.
China's' Civil Law 'Article 130 provides that:' Where two or more joint tort damages caused by another person shall be jointly and severally liable. 'That is, the common fault is the behavior of two or more people, based on common intent or negligence caused damage to others.
The definition of common fault, it was that: a few actors have between the subjective meaning of common virulence contact, or have a common fault, that is, have a common fault. Was also suggested that: To make the main unifying their behavior has become a common behavior, it must be the wishes of their motives, namely, the common meaning of contact arms, or to seek a common pass, or reads a common intent. I agree with the first view, the common fault of both is a common intentional, it can be a common fault, but also the other side is the deliberate negligence, or that, a number of the perpetrator or the results have a common understanding, or the occurrence of such an outcome should do to the reasonable care and not paying attention, can be considered a common fault.
Here, the school did not improve the rules and regulations, explicitly prohibit corporal punishment of students a teacher, or teacher has done absolutely nothing corporal punishment on students, resulting in the case of corporal punishment on students of teachers. Since the schools are omissions, teachers implement the offense should be split according to their own fault, the size of the bear corresponding responsibilities.
3, belongs to the school, the perpetrators (teachers) and victims (students) mixed-fault of the general corporal punishment should be the size of three mistakes by the respective responsibility.
Hybrid fault is defined as the damage occurs, the perpetrators (teachers) and victims (students) have the fault. One: corporal punishment in schools do not improve the rules and regulations which prohibit corporal punishment by teachers of students, and the second: The school teachers in a laissez-faire state of corporal punishment on students, teachers, corporal punishment on students, their three: corporal punishment, students themselves to blame. Mixed fault system, embodies the spirit of own responsibility, who do not have to take responsibility for the other offenses, and therefore more equitable.
(C) The criminal liability
Harmful to the society according to their degree of size can be a crime to determine whether corporal punishment on students, for example, because of corporal punishment, humiliation students from victims of physical disability, death, suicide, they may violate the criminal law and constitute a crime.
China's criminal law to implement the principle of guilt conceited, who committed a crime who will bear criminal responsibility, but not hurt the innocent. Teachers to students serious corporal punishment, whether it constitutes negligence or intentional assault, assault, crime can only be implemented for the main body of criminal acts.Educational institutions engaged in education schools, it may be due to various reasons such as :Sanctions do not discipline students, and maintain normal lectures learning interest of students, improve school admissions rates to a laissez-faire teacher corporal punishment, but there is no reason for a laissez-faire crime. Therefore, teachers using corporal punishment constitutes a crime, and its fault certainly the teachers with the implementation of the subjective aspects of corporal punishment in the division of responsibilities in the implementation of corporal punishment caused by crime, criminal liability of teachers, the school should assume joint and several civil liability.
In short, the need to use corporal punishment to complete a teacher education is no German teachers. Corporal punishment by teachers of students is a violation of student body right, the right to human dignity, health, education, and other rights violations. Corporal punishment by teachers of students behavior, constitutes a breach of 'Teacher Law 'Behaviors should be investigated according to law the administrative responsibility of the perpetrator. Because of its part of the school, under normal circumstances acts are duties. Circumstances causing bodily harm less to the students, the school should bear civil liability; case heavier violated the law constitutes a crime for teachers to administer corporal punishment should be held criminally liable.
8, preventing the phenomenon of corporal punishment by teachers of students countermeasures and suggestions
Corporal punishment by teachers of students generated mainly due to the phenomenon of :
1, Some teachers of the feudal remnants of educational thinking serious in teaching conceited in their own positioning, or thousands of years of 'Heaven, Earth, Jun, pro, teacher 'Above the top of their own students, no teachers and students the concept of equality;
2And one-sided pursuit of scores, stress transition rates by the "Exam-oriented education "Adverse effects;
3Some teachers, their own lack of good morality, to use every opportunity Xie Sifen, Figure retaliation;
4Some teachers a sense of law that the '敲敲打打 not illegal ';
5, Students are not subject to management in order to 'Princess ', 'LeBron 'Itself, bad personality and performance, etc.
6, Schools and higher proportion of regulatory oversight, education, law enforcement and supervision mechanism is not perfect, system construction should be improved.
In this regard, I proposed the following measures and recommendations to solve :
(1 )Strengthen supervision and pay close attention to the prevention
1In schools legal service agencies, Jiaodai Hui, parent committees, a coalition of student activist students oversight body, the contents to the public defenders to provide students with effective legal services and counseling, and create a favorable external environment.
2To develop information-gathering staff, in-depth investigations, and strive to gain first-hand information, periodic seminars to find out problems
3, Appointed supervisors to provide assistance to students. Students to activist student monitors to be right is not conducive to the healthy growth and against the legitimate rights and interests of students in a timely manner to the higher authorities to supervise the relevant departments of the problem.
4, Of the educational process for teachers to establish performance appraisal system, development of incentive measures, the role played by the constraints of teachers.
(Two )Improve the mental health of teachers
1And education authorities to employ professionals in the establishment of specialized agencies, the general scale dedicated test other methods of psychological health of teachers in test results made known to teachers, inform them about the self, self-perfection.
2, School teachers receive specialized mental health education to help teachers to understand the psychology of knowledge, so that teachers have the necessary psychological adjustment techniques, allowed to carry out psychological self-regulation.
3, For teachers to carry out psychological counseling and services, reduce the psychological burden on teachers.
(Three )Conduct schools, teachers, parents, students, self-assessment peer assessment
1In order to implement the class as a unit teachers, students and peer assessment after the first self-assessment to find the problem and common solutions.
2And implement student evaluation of students. For school students, for students to peer assessment after the first self-assessment to find out the reasons for the students themselves.
3Carry out assessments of teachers parents, so that parents and teachers being evaluated completely isolated, giving parents a space to express their views, will the parents to submit comments to the teachers to self-examination.
1, 'Education Law '
2, 'Prevention of Juvenile Delinquency Act '
3, 'Teacher Law '
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