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前一段时间,几起学生状告学校的行政诉讼成为传媒热点,也向行政法学界,甚至法学界、教育界提出了一系列尖锐的问题,其中尤以某博士生诉北京大学一案反响最大。一个仍无定论的问题是:学生以学校为被告提起行政诉讼,法院应否受理?换句话说,以学校为主体实施的管理行为能否成为行政诉讼的标的?笔者认为,教育权与其他国家行政管理权一样,应该接受法律监督,是行政诉讼的标的,学校作为教育权的行使者之一,其行为被包含在行政管理范围之内,可以作为行政诉讼的被告,这是教育权的本质决定的,也是法治行政的根本要求。
Some time ago, several students sued the administrative litigation in schools as a hot topic in the media. They also raised a series of sharp questions to the administrative jurisprudence circles, even to the law circles and the education circles. In particular, one Ph.D. student v. Peking University had the most repercussions . A question still inconclusive is: Should a student institute an administrative lawsuit with the school as the defendant, should the court accept it? In other words, can the administrative act with the school as the main body become the subject of administrative lawsuit? In my opinion, the right to education and other countries Just like the administrative right, it should be subject to legal supervision. It is the subject of administrative litigation. As one of the executor of educational right, the school is included in the administrative scope and can be the defendant in administrative litigation. This is the nature of the right to education Decided, but also the fundamental requirement of rule of law administration.