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高校内部自治规则本身的合法性问题引发了高校治理的合法性危机。传统的行政法研究进路虽解决了高等学校作为行政诉讼被告的必要性问题,但对高校自治规则本身合法性问题的回避,使其无法在最终意义上为高校依法善治开出一剂良药。相较之下,软法则为高校自治规则的合法性构建提供了新的研究路径:一方面,以开放、参与和协商为特征的软法机制与高校自治的精神在本质上相契合;另一方面,软法规范需置于宪法和相关硬法的约束之下,则又可以防止高校自治脱离国家法,背离良法之治。
The question of the legitimacy of the rules of self-government within colleges and universities has triggered the crisis of legitimacy of the governance of colleges and universities. The traditional approach to administrative law has solved the necessity of colleges and universities being defendants in administrative litigation. However, the avoidance of the legitimacy of the rules of self-government in colleges and universities prevents it from giving a good dose of good medicine to the goodwill of colleges and universities in the final sense. In contrast, the soft law provides a new research path for the legitimacy of the autonomy rules in colleges and universities. On the one hand, the soft law mechanism characterized by openness, participation and negotiation is in essence compatible with the autonomy spirit of colleges and universities; on the other hand, In terms of soft law norms should be placed under the constraints of the Constitution and the relevant hard law, you can prevent the autonomy of institutions from the national law, from the rule of good law.