The teacher appeals

The teacher appeals several thinking in the administrative system 【2004-11-26】

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著者：梦多工作室 | 上传时间：2004-06-20 | Chinese Version |

【英文完稿日期】:2004-11-26
【中文本发贴到】:2004-06-20 中国法院国际互联网站 -> 法治论坛 -> 论坛列表 -> 法学争鸣 -> 行政

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【中文本发表在】:2004-06-20 法律图书馆—法律论文 http://www.law-lib.com/lw/viplwsave_view.asp?no=3269

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The teacher appeals several thinking in the administrative system
[ Preface ]
It can be resumed and remedied that when the teacher's legitimate rights and interests are infringed and caused the harm, what method is adopted. Employ dispute of contract of teacher in public institution, can through pedestrian thing arbitration of dispute solve now. Arbitrated and refused to obey the personnel dispute, the teacher can be according to·Judicial Interpretation [2003 ] for the 13th· "The Supreme People's Court Regulation on the Issues Related to the People's Courts' Trial of Personnel Dispute Cases Occurred in Institutions" of the Supreme People's Court Bring a suit before people's court.

To not involving employing the contract , teacher's legitimate rights and interests are infringed , can pass the legal way of administration that the administration appeal --The teacher appeals, to solve safeguarding with the rights and interests, this is that the teacher appeals the system.

First, the teacher appeals the system
Whether our country "teacher law" article 39 stipulates: "The teacher infringed its legitimate rights and interests to the school or other educational institutions, either refuse to obey the treatment which the school or other educational institutions make, can put forward the appeal to educational administrative department , the educational administrative department should be in receiving 30 days of appeal, deal with ". "Teacher think local people's government relevant administrative department infringe his right enjoyed according to the stipulations of this law, can put forward the appeal to people's government or relevant department of people's government at a higher level at the same level ; The people's government or relevant department of people's government at a higher level at the same level should deal with ".This it is constitution that appeal about citizen right stipulate the concrete embodiment on teacher.

This system of relieving procedure of administration of maintaining teacher's legitimate rights and interests that " teacher law " established, namely when its legitimate rights and interests are encroached on in accordance with laws and regulations teacher, appeal reason, is it is it maintain one's own system of legitimate rights and interests to deal with to ask to administrative organ of executive, the teacher appeals the system.

Second, the teacher appeals the system and possesses the characteristics of the following:
1, It is that one appeals the system legally that the teacher appeals the system. "Teacher law" Have stipulated the procedure that the teacher appealed clearly, the people's governments and relevant departments at all levels must make the decision to deal with to the teacher's appeal within fixed time limit in accordance with the law, make the teacher's legitimate rights and interests ensured in time. The school and other educational institutions, the decision of handling which the relevant department makes to the administrative organ of higher level, have an obligation to carry out, otherwise, namely should bear corresponding legal liability. It is appeal of lawsuit to be other, for instance to letters and visits from the masses department, administrative supervisory department, etc. appeal of department. Though to maintain rights and interests of teacher have certain guarantee function , have legal provisions clearly require with time limit, it is implemented there are certain elasticity and random in the unavoidable area of course, have reduced the recovery of complainant's damaged legitimate rights and interests and remedied in a certain procedure . This is that "teacher law" appeals the purpose that the system becomes the legal system of the teacher too.

2, it is that the right of a specialization relieves the system that the teacher appeals the system. It specifies the teacher this specific professional personnel's appeal right on the basis of enjoying right of appealing for the citizen in constitution. Watch at appealing subject that accept, teacher subject accepted to appeal specific, namely educational administrative organ. In charge of educational administrative organ appeal party administrative decision of handling of change of right according to administrative statute and regulatory file made influence, it is a concrete administrative behavior of administrative organ. Watch at appealing time limit, appeal competent authority in Mr. must make the decision to deal with within legal time limit , in how long it is right to take place in party , more than ten years , even thing for decades, if think it extremely unfair , appeal to relevant government offices. Look from rendering a service, have effect on administrative laws to the decision of handling that the teacher appeals.

3, Teacher appeal system whether lawsuit administration of meaning appeal the system. It by administrative organ appeal in teacher in accordance with the law, make the system that the administration dealt with according to legal administrative power and procedure. Its administrative decision of handling has effect on administrative law. So in bear the weight of teacher appeal administrative document of result must accord with the legal provisions too.

4, Teacher appeal system start administrative organ deal with according to administrative power and administration their procedure go on the administration punish. And may cause the starting of the administrative contentious procedure in accordance with the law.

5, the teacher appeals the system and difference of systems of other appeal:
(1) Difference of, and the letters and visits from the masses systems. Letters and visits from the masses system appeal system, but letters and visits from the masses clear subject of accepting one administration too while being actual; Letters and visits from the masses punishing to administrative organ time limit have legal time limit restrain from after accepting; Letters and visits from the masses organ to is it place on file investigate and prosecute hand relevant competent authorities punish to need often, they treatment to competent authority is it supervise to check , can lead to the fact the emergence of administrative litigation only.
(2) and the appeal system on the law of legal procedure. The appeal system on the law of legal procedure is a citizen the judicial authority does not agree with already legally effective judgement, adjudication correctly, and put forward the appeal, the system asking to be reviewed to the court or the procuratorate.

Third, which situation Mr. may get the appeal out of
"teacher law " teacher can get to school or other educational institution out of range of appeal stipulate more widely correctly, as follows mainly:

1, the teacher thinks the school or other educational institutions infringe its fixed legitimate rights and interests of "teacher law ", can put forward the appeal. Legitimate rights and interests of the teacher here, including " teacher law " The teacher stipulating is engaged in the post, teaching scientific research, arrange the task, reach teacher's working essential condition, democratic management, training receives a training, examine rewards and punishments , salary welfare treatment , retire , dismiss , expell , stop society premium not to pay , stop Mr. society not to protect such legitimate rights and interests of various fields as the relation ,etc. illegally. Whether certainly has really infringed the teacher's legitimate rights and interests, the one that want through appealing is investigated, could confirm. But only the teacher thinks the school or other educational institutions have encroached on its legitimate rights and interests, can put forward the appeal.

2, the teacher makes the decision of handling on and refuses to obey to the school or other educational institutions can put forward the appeal. Here, the decisions of handling of the school or other educational institutions, may have encroached on the teacher's legitimate rights and interests, may not encroach on the teacher's legitimate rights and interests either. But if teachers can put forward the appeal to dealing with refusing to obey. And infringed its legitimate rights and interests to other enterprises, public institution or individual, do not belong to the range that the teacher appealed.

3, the teacher thinks the related departments of the local people's government infringe their fixed legitimate rights and interests of "teacher law ", can put forward the appeal.
Appeal the range, the range that has one time. Namely there is only case taking place after the effective date (January 1 , 1994 ) of " teacher law ", can just mention in accordance with " teacher law " that appeal . Case taking place before it is for "teacher law" effective date, press by original procedure not relevant still generally (for example: The people's letters and visits from the masses) handle.

Fourth, time limit that the teacher appeals
The teacher can put forward to appeal at any time, which is to say that the prescroption in law is limited.

Fifth, teacher appeal and put forward to someone, who accepts
Accept organ that teacher appeal, because of appeal subject different distinguishing to some extent. Can divide two kinds of situations:
1), if the teacher proposes appeal to the school or other educational institutions, it is the executive's education department to accept the organ appealed;
2), if propose appeal to the relevant administrative departments of the local people's government, it can be the people's government at the same level or a administrative responsibile institution that the people's government at a higher level fitted in with one's training or specialty to accept the organ appealed.
The ones that need pointing out are: The teacher can only put forward to appeal to administrative organ, can't put forward to individual of the administrative organ. Otherwise the administrative government functionary will handle according to the general letter from the masses.

Sixth, administration which the teacher appealed
The administration said here, mean that accepts division of labour and authority that a teacher appeals the case between the administrative organs. The administration that the teacher appealed the system is divided into and under the jurisdiction of administering, administering, choosing to administer, transfer and administer etc. in the region.

1, you have to under the jurisdiction of administering. Mean teacher when the appeal of getting out of, should put forward the appeal to administrative competent authority of education that this school or other educational institutions are under the jurisdiction of. The educational administrative organ will be under the jurisdiction of administering according to the administrative division of functions and powers too under the general situation.

2, the region is administered. While pointing the teacher in the school or other educational institutions without direct membership and proposing the appeal, according to the administration authority of the educational administrative department, the education administrative department under the charge of locality accepts. For instance: There is no membership between civilian-run school and educational administrative department, the teacher in the civilian-run school appeals the suitable region to administer.

3, Choose to administer. Mean that a teacher chooses one between two or more administrative organs that have the right to administer, mention that appeals. Accepting the administrative organ appealed can't delay prevarication. Appeal about the administrative department to the local people' s government, the complainant can choose the organ accepted in the people's government or relevant department of the people's government at a higher level at the same level . In this case, the complainant should generally choose to accept the organ in line with in time, convenient principle that fits in with one's training or speciality compared with business.

4, Transfer and administer. Mean that the administrative organ should move to the administrative organ that have the right to administer and handle to not belonging to the appeal case of its compass of competency , tell complainants at the same time.

5, Appoint administering and agreement of election of forum. You have to under the specific situation, perhaps will also involve appointing administering and agreement of election of forum.

Seventh, undertake the department that a teacher appealed concretely in the educational administrative organ
This depends on concrete situation, is generally supervised and guided the department to undertake concretely. Because the teacher will often involve the laws, such as the proprietary, right of the person, etc. and policy question to appeal, so the personnel department of the educational administrative organ, working office of legal system should supervise and guide the department and work jointly.

Eighth, procedure which the teacher appealed
The teacher is appealed the system to appeal and propose, accepted and dealt with three links to make up, and the preface goes on sequentially.
1, Put forward the appeal. The teacher puts forward the appeal, should propose in written form.

2, you have to accepting to appealing. After the executive's education administrative department receives the appeal book, should examine the complainant's qualification and condition of the appeal, differentiate different situations, and deal with as follows:
①As to the thing that the one that is qualified to appeal should accept ;
②To the one that is not qualified to appeal , should answer complainants and refuse to accept in writing ;
③For appeal book make it clear reason of appealing and require , require to resubmit and appeal the book.

3, you have to the treatment appealing. The administrative organ should carry on overall verifying through investigation to the appeal case that is accepted. According to different situations, make the following decision of handling separately:
① The administration behaviours of the school or other educational institutions accord with legal authority and procedure , it is correct to be covered by the laws and regulations , the fact is clear , can maintain the original result ;
② The deficiency on the procedure exists in the administration behaviour, determine to be added and corrected by the complainant;
③ To the ones that are be defaulted duty that the laws and regulations and rule stipulate by the complainant, determine to correct within a definite time period;
④ It is wrong that a part of the administration behaviour is covered by the laws and regulations and rule, can alter the original result or not suitable part ;
⑤ The inside rules and regulations that the administration behaviour bases on contravened laws and regulations and other regulatory files , can cancel its original decision of handling .

Ninth, burden of proof
The burden of proof that the teacher appeals should generally speak is undertaken by the school or other educational institutions.

1, Complainant: Is it is it appeal to his evidence material with suggestion to prove to refer to organ appealed to accept; and these two kinds of evidences of evidence material of identity of the complainant's. For example, some school Mr. stop society their is it pay the fees to protect worked school; For example the Chinese teacher of the school of a middle school has the mathematics lesson arranged to teach by the school, though treatment any become teacher this disagree, complainant at this moment refer origin of an incident appealed to mention only, make the complainant's suggestion material clear. In a word, as to complainant, only require that can start the basic evidence material that a teacher appealed the procedure.

2, the school or other educational institutions: Must refer the evidence material that can prove the fact, deal with the course, fulfil the legal obligation, and the legal basis of making the decision to deal with or dealing with the incident.

Examine and confront the investigators in tenth, evidence
It is a juristic act that the teacher appeals, accept the administrative decision of handling that the organ makes and have effect on administrative laws, so in order to guarantee that decision of handling is correct, accept organ must to appeal both parties referred evidence material , laws and regulations regulatory file go on in writing checking. Judge the authenticity, legitimacy of the evidence material tentatively; Applicable to asserting tentative lying of the laws and regulations involved correlating with this case.

Organize both sides to refer have evidence material cross-examination , let complainant is it recognize and approve to go on to evidence; Is it explain complainant to evidence material that refer to its to let, is it appeal party this case involved laws and regulations it applicable toes to be proper legal to explain that fully expresses an opinion to let.

Accept organ according to that functions and powers investigate by oneself evidence material should cross-examination duty.

11th, appeal the fact to assert
Assert that the evidence material which appeals the fact must be true, legal, and through appealing party's cross-examination without demur.

As to through complainant of both sides cross-examination, and without demur evidence material, accept organ should adopt the letter, gather, can be regarded as the basis of asserting the fact. As to the thing that both sides held different suggestions, and can't prove that this fact or complainant proved of evidence material has already approved of originally by the complainant, can't adopt the letter. You have can't be regarded as the basis which asserts the fact by the evidence material which has appealed both parties' cross-examination.

It should be according to the letter, evidence material with authenticity, legitimacy and strength of proving through adopting to accept the organ, and belong to the applicable laws and regulations and assert the fact according to the legal provisions.

12th, laws and regulations are applicable to correctly
Suitable principle: Applicable to the law of the country and administrative statute correctly; Administration's regulatory file is not suitable in principle.

Concrete type: 1, Basic law; 2, The State Council makes the administrative statute announced; 3, With the approval of the State Council , administrative statute announced by the department of the State Council before implementing (July 1 , 2000 ) of " legislative law "; 4, Other administrative statutes confirmed by the State Council; 5, Local administrative statute; 6, The regulatory file of administration after implementing (July 1 , 2000 ) of " legislative law " can't be applicable to; 7, Implement the regulatory file in the past to the legislative law, is it go to location to in, and with administrative statute, local administrative statute conflict, have legal effective and rationality can suitable(1 note).
（1 note: Supreme People's Court Summary of the Forum on the Application of Law and Regulations in the Trial of Administrative Cases）

13th, treatment document which the administrative organ should make
" implemented the regulations in Sichuan Province " on April 26 , 1995 Regulation " after 39th administrative organ make the decision to appeal and deal with , should appeal book of decision of handling send to and appeal parties ". " the State Education Commission about several implementation suggestion of issue " will it be October 6 1995 Regulation " after administrative organ make the decision to appeal and deal with , should appeal book of decision of handling send to and appeal parties ". " Chengdu education commission appeal several provisional suggestion of problem about teacher " " after making the decision to appeal and deal with will it be September 3 1998, should appeal book of decision of handling send to and appeal parties ".

In accordance with above-mentioned local administrative statutes , administrative regulatory files, after the administrative organ makes the decision to appeal and deal with, send to for the legal copy clerk who appeals the party to have only one kind, namely " appeal the book of decision of handling ". If, it is not to appeal the book of decision of handling that the administrative organ sends to the document which appeals the party, unless but it is the other and gentle kind, such as " opinion book ", then have method of administrative organ at law at first according to, secondly it is the illegal activities , " opinion books " made do not have legal effect , appeal party can people's court is it is it cancel " opinion book " concrete administrative administrative litigation of behavior to ask to bring to this administrative organ site.

If accept the organ and has not made "appealing the book of decision of handling", this indicates that work of treatment of accepting the organ has not been over, his work is still in process. For accepting other document that the organ provided, so long as not legal, it can collect to appeal parties, can refuse to collect too , appeal parties and have the right to demand to accept the organ and make " appealing the book of decision of handling ".

14th, the administrative organ deal with the legal time limit that a teacher appeals
" implement the regulations in Sichuan Province " 38th regulation " accept teacher appeal administrative organ of case should in is it appeal next day in book deal with in the 30 days to receive ". " the State Education Commission about several implementation suggestion of issue " will it be October 6 1995 Regulation " to school or other appeal that educational institution put forward , in charge of educational administrative department should in is it appeal next day in book deal with in the 30 days to receive. "

In accordance with above-mentioned local administrative statutes, administrative regulatory files, it is 30 days to deal with the time limit that a teacher appealed. This is legal time limit, the administrative organ can't lengthen. Appeal parties at the same time and have no right to agree that the administrative organ lengthens this time limit.

15th, request that must accord with that "appeal the book of decision of handling"
1, Must make and send and appeal parties within 30 days in "appealing the book of decision of handling ";

2, The content of " appealing the book of decision of handling " and decision of handling must accord with the regulations of the law and " official document treating method of national administrative organ " , can't be self-contradictory, let alone make the wrong decision of handling;

3, " appealing the book of decision of handling " should be listed and appealed all evidence materials that parties referred each; Accept the evidence material that the organ transfered; Adopted the evidence material of the letter by cross-examination; And the laws and regulations that are covered by;

4, Must " appeal decision of handling book " is it appeal party agree with legal way that acquisition relieves of decision of handling to state clearlying accurate, namely tell right , other rights and exercise the time limit of the right.

16th, "appeal decision of handling book " must state clearly which appeal the relief right that parties should enjoy
1, The way that is relieved and legal way: (1) Way to establish that , the administration is inside: Appeal party to appeal that decision of handling does not agree with , can to deal with people's government that the organ is under the jurisdiction of apply and check originally. (2) Whether, legal way. Teacher appeal, appeal content involve right of the person , proprietary and other their administrative reconsideration , administrative litigation scope of accepting cases item directly, can bring administrative reconsideration or administrative litigation in accordance with the law.

"The State Education Commission is about the implementation suggestions of several questions "Have stipulated in the form of regulatory file that the teacher appeals two kinds of relief ways of the party's. These two kinds of relief ways are not the same nature, it is not a due course of law to apply to check, and the country has not appealed the procedure law checked at present, and applies to check the leading procedure that is not legal administrative litigation. Moreover after checking, if appeal parties to refuse to obey, how to deal with, it is unable to find out whether to could litigate now or not.
So, should state two kinds of ways clearly for appealing parties to choose according to "implementing the suggestion".

2, you have to whether start legal time limit (tell right and exercise time limit) to relieve procedure. For bringing the time limit and procedure of administrative reconsideration or administrative litigation, the law all have clear regulations, the party may know , may not know either , so must state clearly in appealing the book of decision of handling . Have not stipulated, if the administrative organ does not state clearly and perform duty of telling in applying to check the time limit law, if some treatment document of bureau of education describe " complainant, and originally right complainant like this --If refuse to obey, can turn towards --The municipal government applies to check ", it is at all unable to operate to appeal parties.

17th, agent that the teacher appealed
Since teacher is it appeal lawsuit administration of meaning to appeal, the complainant can trust the agent to act as agent, even if agent complainant should join in person too. Said on the angle from then on, the complainant's mandate to agent trusted the range to generally act as agent, can't offer the special mandate on entity's right. You have to, But there is special situation, and unless the law has regulations besides.

To the quilt complainant --The school or other educational institutions, even administrative organ, because itself between they and complainant is relations between a kind of inequality, once is it appeal to mention, defendant shoulder obligated to participate in, and is it accept the investigation of the organ and have the obligation to put to the proof to accept. So, should participate in person by the complainant , be unable to entrust the agent but not show up by the complainant, even agent, agent range of agent its can only act as agent generally too.

If the teacher appeals because one party or both sides do not agree with the decision of handling that the educational administrative organ make, and enter administrative litigation, defendant agent very abiding by laws participates in administrative litigation.

18th, appeal a teacher and start the time limit of the way of the relief
1, The Administrative reconsideration:
You have to, According to "administrative reconsideration law "regulation of article 9, should in "put forward the administrative application for reconsideration in being from the day of knowing this concrete administrative behavior 60 days "."Citizen , legal person or other organizations think that infringed its legitimate rights and interests in concrete administrative behavior, can put forward the administrative application for reconsideration in 60 days from the day of knowing this concrete administrative behavior ; But unless the application time limit of the legal provisions exceeds 60 days. Because force majeure or other reasonable grounds delayed applying for time limit legally, apply for time limit and continue being calculated from the day of dispelling in obstacle. "

2, Administrative litigation:
You have to, According to the regulation of "Administrative Procedure Law ", the time limit to bring administrative litigation divides into two kinds of situations:
(1), whether, agree with the prosecution after the administrative reconsideration. Can bring a suit before people's court " 38th citizen " within 15 days after receiving the book of decision on reconsideration, legal person or other organizations applied to reconsider to the administrative organ, should make the decision within two months from the day when receive the application while reconsidering the organ . You have to, unless the laws and regulations have regulations besides. The applicant does not agree with decision on reconsideration, can bring a suit before people's court within 15 days after receiving the book of decision on reconsideration . Reconsider the organ and does not make decision on the expiration of the time limit, the applicant can bring a suit before people's court within 15 days after expiring in reconsideration . You have to, unless the law has regulations besides. "
(2), directness is prosecuted : Should put forward " 39th citizen " within three months from the day when know that makes concrete administrative behavior , legal person or other organizations are under litigation to the people's court directly, should propose within three months from the day when know that makes concrete administrative behavior . You have to, unless the law has regulations besides. Article 40 Citizen, legal person or other organizations delayed legal time limit because of force majeure or other special circumstances, in ten days after the obstacle is dispelled, can apply to lengthen time limit, and is decided by people's court. "

3, Have not stated the right of telling clearly and prosecuted time limit in "appealing the book of decision of handling ":
According to the regulation that " the Supreme People's Court is about carrying out the explanations of several questions ": Article 41 Administrative organ at making concrete administrative behavioring , tell citizen , legal person , other organization tell right or prosecute time limit, prosecute time limit know or should know right of telling or prosecute from the day in time limit calculating from citizen , legal person , other organization, but can't exceed 2 years at most from the day when know. Decision on reconsideration tells citizen, legal person, other organization tells right or legal to prosecute time limit, covered by the previous provisions.

4, the complainant has not received and "appealed the book of decision of handling":
" Judicial Interpretation " 42nd citizen , legal person or other organizations do not know concrete administrative behavior content that the administrative organ makes , its prosecution time limit is calculated from the day when know or should know this concrete administrative behavior content . Over 20 years from the day of making to the concrete administrative behavior which involves the real estate, other concrete administrative behaviors litigated over 5 years from the day of making, the people's court refuses to accept.

5, Check:
There are not the concrete regulations of laws and regulations; administrative organ does not make the concrete procedure regulation.

19th, appeal teacher's relief measure and choose to start with the procedure
1, for checking, because there are not the concrete regulations of laws and regulations perform practically no function to this way, proposes not adopting.

2, Administrative reconsideration:
For according with one of the fixed situations of article 6 of "administrative reconsideration law "and reconsidering time limit, appealing a teacher can mention the application for reconsideration.

3, Administrative litigation:
The concrete administrative behavior of the administrative organ can bring administrative litigation within legal time limit.
The complainant did not agree with " appealing the book of decision of handling ", so long as refer " appealing the book of decision of handling " copy or copy to people's court, and the relevant evidence material that maintained, within legal time limit, after the people's court places on file to have the right to administer in accordance with the law, can start the administrative contentious procedure.
-- End --

It is gentle to continue
The teacher appeals several thinking in the administrative system(2)
The teacher appeals several thinking in the administrative system(3)

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