中文题名 “高考移民”现象的宪法学分析——论受教育平等权的保障
英文题名 The Constitutional Analysis on Phenomenon of "Migration for the College Entrance Examination ——---The Protection on the Equality of the Right to Receive Education
中文文摘 本文通过大量的数据和事实阐明了我国“高考移民”现象的状况，并以宪法学为视角对这一现象进行了深入分析。教育作为人类社会一项基本活动，对个人和社会都有着重要的意义，通过传授给个人生产知识、生存技巧，成为个人生存发展的基础。在促进个人发展的基础上，教育又通过提高人的素质进而促进社会经济、文化、政治各方面的发展。随着“知识经济”的到来，现代社会的生产力发展与科学技术的联系更为紧密，教育的意义在现代社会中显得更为突出也更为重要。然而，现实中公民的受教育平等权却呈现出一种差序格局客观存在的状态，因此，受教育平等权的实现就成为一个亟待解决的问题。受教育平等权的保障不仅体现在公民个人生存与发展的层次上，更体现在对社会进步、文明与社会现代化的推动上。受教育平等权的保障与实现是本文对其进行宪法学分析的出发点及归属点。主体结构分为四部分。以公民受教育平等权为核心，笔者通过对近些年“高考移民”的回顾引发了对我国公民受教育平等权的实现状况的思考。笔者以介绍现象、分析原因、提出解决方案的思路对公民受教育平等权性质、特征、功能、社会意义等进行了分析，证明了受教育平等权实现的必要性和合理性。文章最后，笔者对我国所采取的保障受教育平等权的措施进行了探讨，同时探讨了我国今后促进受教育平等权实现的总体思路与具体措施。文章第一部分从近年来“高考移民事件”出发，引出了对公民受教育平等权的思考。通过基本权利中的平等权、受教育权、受教育平等权的内涵及外延的分析揭示出“高考移民”的本质是公民的受教育平等权在政府管制（招生指标）和户籍制度双重约束下得不到实现的产物，是公民对受教育平等权进行个体救济的一种表现。政府采取的“封堵”和“限报”措施有其合理性以及形式合法性，但却是对现有的受教育权不平等的维护，即违犯了宪法所体现的平等精神，也不利于整个社会的发展，最终结果只能是使受教育权利不平等状况更加恶化。文章第二部分对我国公民受教育平等权的实现现状与公民受教育不平等状况进行了分析。对我国现阶段受教育权利不平等状况的分类包括了对公民受教育平等权利的地区差异、社会阶层差异以及性别、身体等方面的不平等与歧视三个层次。文章第三部分对我国社会转型时期受教育权利不平等的成因进行了分析。笔者在该部分试图论证，在社会转型背景下，公民受教育部平等的状况是外部原因的社会经济制度变迁对教育系统的影响，内生原因的教育制度变迁，户籍制度的客观存在，教育资源的分配不公以及权利差序格局客观存在的多种因素共同作用的结果。文章第四部分对我国公民受教育平等权实现路径进行了探讨。第四部分中的第一小部分从宪法实践中无法直接适用的传统和司法机关在司法实践中不独立的地位使其不能保持中立，不能为受教育平等权做出公正的判决两个层次对司法实践中公民受教育平等权保护不够的原因进行了分析。的第二部分对教育平等思想与受教育平等权保护的根据重新进行了阐释。第三部分是本文的结束部分，笔者通过对全文的整体思路的回顾，提出了消除社会中公民受教育不平等、达成人人都有适合自我发展的受教育权利，是任何一个现代文明国家的教育理想。并结合我国具体国情对我国实现受教育平等权的总体思路和当前应采取的措施进行了探讨。笔者从立法、行政和司法三个角度对受教育平等权的宪法保障体系进行了系统阐释。 关键词：“高考移民” 受教育平等权 社会转型 宪法保障体系
外文文摘 This paper clarifies the situation of “mobile population for College Entrance Examination” through data and facts and gives us the Constitutional analysis on the phenomenon. As a basic activity of human society, education is of great importance to individuals as well as to human society. Through initiating the knowledge of production and survival, education performs as the basis of existence and development for individuals. Furthermore，the progress of individual diathesis accelerates the development of economy, culture and politics. At the dawn of era of information economy, the contact between social prolificacy and science and technology intensifies，thus, education is increasingly significant. However, in reality, the right to receive education is not equal among citizens. The realization of equal right to receive education requires solution critically. The importance lies not only in the existence and development for individual，but also in the acceleration of social advancement and modernization. The realization of equal right to receive education is the cause and aim of the analysis in this thesis. The thesis is composed of six parts. With the equal right to receive education among citizens as the focus, the author reviews the incidence of Migration for College Entrance Examination in recent years, and ponders on the situation of education in China. In the end, the author concludes the practice of the protection of equal right to receive education in China. Meanwhile, the general courses and particular measures to realize the equal right to receive education are proposed. In Part 1, the author sets out from the incident of Migration for College Entrance Examination in recent years, then considers the equal right to receive education among citizens. The immigrant in College Entrance Examination is the outcome of dual restriction of governmental administration and registered residence system. Under such restrictions, the equal right to receive education may not realize. On the contrary, it is separate redress. On one hand，the restrictions that the government adopts are rational and just in some degree; on the other hand, they maintain the inequality of right to receive education, thus, they go against the spirits of equality set by Constitution, and hinder the social development ,and ultimately deteriorate the situation of inequality of the right to receive education. In Part 2, the present situation of the equal right to receive education is analyzed. The analysis contains 4 aspects. Firstly, the author classifies the situations of unequal right to receive education in China, including the regional difference, stratum difference, sex discrimination and physical difference as well. In Part 3, the causes of the inequality in right to receive education are analyzed. In this section, the author tries to demonstrate that the inequality is the result of the influence imposed by the changes of economic systems which serve as exterior cause, educational systems which serve as intrinsic cause, and other cause, such as registered residence system, the unfair disposal of education resources and the configuration of right discrepancy. In Part 4, the thesis emphasizes on the realization to receive the equal right of education. In this Part , firstly the thesis emphasizes on the analysis in the shortage of the protection of equality of education right in the realization of Constitution. Secondly the author elaborates the basis of the equal right to receive education as a function of human right again .The equal right to receive education guarantees the existence and development of individuals, accelerates the progress of both society and state, and mitigates the social inequality, thus, the realization of equal right of education is rational and indispensable. .Finally, the author reviews the thesis, and proposes that the inequality in opportunities and contents of education should gradually be eliminated, and finally achieve the idealization that everybody can receive education which fits for his own development. It is the ultimate goal of education in modern civilized countries. Combined with the relevant systems and particular conditions, the author proposes the general courses and particular measure to realize the equal right to receive education in China. Key Words: the immigrants for National College Entrance Exam； the equal right to receive education; the transformation of society; the protection system of Constitution This paper clarifies the situation of “mobile population for College Entrance Examination” through data and facts and gives us the Constitutional analysis on the phenomenon. As a basic activity of human society, education is of great importance to individuals as well as to human society. Through initiating the knowledge of production and survival, education performs as the basis of existence and development for individuals. Furthermore，the progress of individual diathesis accelerates the development of economy, culture and politics. At the dawn of era of information economy, the contact between social prolificacy and science and technology intensifies，thus, education is increasingly significant. However, in reality, the right to receive education is not equal among citizens. The realization of equal right to receive education requires solution critically. The importance lies not only in the existence and development for individual，but also in the acceleration of social advancement and modernization. The realization of equal right to receive education is the cause and aim of the analysis in this thesis. The thesis is composed of six parts. With the equal right to receive education among citizens as the focus, the author reviews the incidence of Migration for College Entrance Examination in recent years, and ponders on the situation of education in China. In the end, the author concludes the practice of the protection of equal right to receive education in China. Meanwhile, the general courses and particular measures to realize the equal right to receive education are proposed. In Part 1, the author sets out from the incident of Migration for College Entrance Examination in recent years, then considers the equal right to receive education among citizens. The immigrant in College Entrance Examination is the outcome of dual restriction of governmental administration and registered residence system. Under such restrictions, the equal right to receive education may not realize. On the contrary, it is separate redress. On one hand，the restrictions that the government adopts are rational and just in some degree; on the other hand, they maintain the inequality of right to receive education, thus, they go against the spirits of equality set by Constitution, and hinder the social development ,and ultimately deteriorate the situation of inequality of the right to receive education. In Part 2, the present situation of the equal right to receive education is analyzed. The analysis contains 4 aspects. Firstly, the author classifies the situations of unequal right to receive education in China, including the regional difference, stratum difference, sex discrimination and physical difference as well. In Part 3, the causes of the inequality in right to receive education are analyzed. In this section, the author tries to demonstrate that the inequality is the result of the influence imposed by the changes of economic systems which serve as exterior cause, educational systems which serve as intrinsic cause, and other cause, such as registered residence system, the unfair disposal of education resources and the configuration of right discrepancy. In Part 4, the thesis emphasizes on the realization to receive the equal right of education. In this Part , firstly the thesis emphasizes on the analysis in the shortage of the protection of equality of education right in the realization of Constitution. Secondly the author elaborates the basis of the equal right to receive education as a function of human right again .The equal right to receive education guarantees the existence and development of individuals, accelerates the progress of both society and state, and mitigates the social inequality, thus, the realization of equal right of education is rational and indispensable. .Finally, the author reviews the thesis, and proposes that the inequality in opportunities and contents of education should gradually be eliminated, and finally achieve the idealization that everybody can receive education which fits for his own development. It is the ultimate goal of education in modern civilized countries. Combined with the relevant systems and particular conditions, the author proposes the general courses and particular measure to realize the equal right to receive education in China. Key Words: the immigrants for National College Entrance Exam； the equal right to receive education; the transformation of society; the protection system of Constitution
