论我国教育惩戒种类创设权的法律规制

当下我国教育惩戒种类创设权正面临缺少系统规制、法律渊源零散、被部分非正式法律渊源滥用等法律规制困境。以兼顾教育惩戒种类多元化和法治化的需求为前提,教育惩戒种类创设权应当严格遵循惩戒目的正当、惩戒对象适格、惩戒内容合法等教育惩戒边界。根据我国统一而又分层次的立法体制及中国特色社会主义教育法律体系的发展趋势,由“教育法典”采用“分类肯定列举+兜底概括授权+反向否定列举”的立法技术来统一规定教育惩戒种类创设权并仅为法律、行政法规、部门规章配置各自法律位阶所对应的教育惩戒种类创设权,应当是我国教育惩戒种类创设权的理性法律规制方案。

Study on Legal Regulations of the Creation Power Concerning Types of Educational Punishment in China

Currently, the creation power concerning types of educational punishment in China is facing the difficulties of legal regulation such as lack of systematic regulation, fragmented sources of law, and abuse by informal sources of law. With the premise of taking into account the diversity of types of educational punishment and the call for the rule of law, the creation power concerning types of educational punishment should strictly follow these requirements: the purpose of punishment is legitimate, the object of punishment is accurate, the content of punishment is legal, etc. Due to the unified and hierarchical nature of China''s legislative system, as well as the development of the socialist education legal system with Chinese characteristics, the Education Code adopts the legislative techniques of "classified affirmative enumeration, general authorization, and reverse negative enumeration" to uniformly stipulate the creation power concerning types of educational punishment. And only for laws, administrative rules, and the rules enacted by the Ministry of Education, such power is allocated corresponding to their respective legal positions. This can be adopted as the rational and legal regulation scheme of the creation power concerning types of educational punishment in China.