中国校园学生伤害的法律研究 = A study on the law relating to student injuries on campuses in China

Publication Type:
Thesis
Issue Date:
2007
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Accidents of student injuries is an objective phenomena involving rather complex legal relationships in practice. This paper focuses on how to coordinate the conflict of interests between school authority and injured students. By student injuries, we mean the injuries which students suffer from in campus. Without such definition, any relevant understanding, research, legislative suggestion and practice could not walk towards right path. In other words, a summery and classification of student injuries’ characteristics will further distinguish the connotation and extension for the said injuries in accordance with special legislations. To understand the legal relationship between school and students, we should clarify and analyze different viewpoints and comments on the legal status and duties of school, as well as legislation and the outcome of researches abroad. When it comes to China, the legislative is suggested to regulate the legal relationship of educational administrative protection. Unlike China’s situation, in other countries this is a kind of social administrative legal relationship. The legislatures in other countries formulate laws and regulations for public and private schools separately. Thus, those various research achievements, for example, the Doctrine of Guardianship Relationship, the Special Authority Relationship Theory, the Contractual Relationship Theory, the Doctrine of Twofold Relationship, are not suitable to the actual situation in China. Other theories like Special Authority Relationship, Partial Social Theory and Doctrine of Importance are not acceptable in China either. In addition, some theories have theoretical omission or may be questionable. In this case, only the definition of educational administrative protection relationship fits the status of Chinese school and students. It means that the school does not burden the guardianship duty to students, but a liability for the educational administration and protection. This point is also fully indicated in The General Provisions of the Civil Law of the People’s Republic of China and other education laws and regulations. The safeguard against student injury in China is extremely important. Those who fail to perform this obligation may undertake any civil liability on damages, as well as administrative or criminal liabilities when necessary. The parties concerned include the builders of schools, such as the country, community, the social organization or individuals; the school itself and it’s staff or teachers, the related governmental agencies: public security, sanitation bureau, epidemic prevention agency, business administration, judicature system, education division etc, the students and their parents or other guardians, as well as other social organizations and units. All of them should assume their respective responsibilities. Under the aforesaid framework, each party has its detailed obligations and duties. For example, the school is responsible for any in-campus factors and the government and social organizations are responsible for any out-campus factors, while the parents and students for themselves. Only in this way can the prevention mechanism of student injury be carried out effectively. The identification of student injuries includes identifications on commission from the involved parties, inspection and analysis by governmental administrative departments, and the judicial identification. Each of them has its characteristics and legal effect. Take the rule of proofing for example, if the parties concerned request an identification of student injury, they have to follow the general rules; while an administrative identification has lower limitations on proofing. However, an administrative identification also has its inherent disadvantages, as the legal liability is not clear and it seems lack of the monitoring mechanism. For the remedies of student injury, it usually includes: (1) school emergency measures including rescuing; informing the guardian, reporting to government or other legal responsibilities; governmental investigation, causation investigation and so on. (2) Rules for negotiation measures. (3) Regulations for intercession measures—its categories, basis and the rules. (4) Notes and tips for litigations. (5) Regulations for administrative measures and so on. To this extent, the identification and remedies of student injury in China need a remedy mechanism with multi-aspect, multi-approach and multi- technique measures. The rule of liability in student injury cases is another controversial issue. There are several rules of liability under tort law theories, which makes the problem in student injury rather complex. Many researches on the rule of liability in student injury discuss the rule of Intentional Torts, the rule of Negligent Torts and their legislative differences. While in this paper, a systematic survey and analysis on the traditional framework of civil rule of liability has been introduced to conduct this particular work in Student injury. According to the research, neither the rule of Strict Liability nor the rule of Fair Liability could be suitable for student injury cases. Moreover, the rule of Intentional Torts demonstrates some shortages in the prevention of student injury as well. As a result, it is better to judging the parties’ responsibilities by the rule of Negligent Torts. In such situation, the school authority is not liable for any civil damage obligations to injured students, unless the school can self-proof its innocent in this injury accident. However, the responsibilities of guardians are much heavier than that of school authority due to an implementation of the rule of Strict Liability. As mentioned above, surveys on the various legislations and academic researches on the rule of liability in student injury in other countries have provided enough evidences that both the rule of Strict Liability and the rule of Intentional Torts failed to assess the legal liability of the school authority in a student injury case appropriately. For the rule of fair liability, the author regards it as a remedy of actual damage allocation measure in juridical practice only, which has little reasonability in legal theory. In other words, the rule is neither a rule of liability in student injury accidents, nor a reasonable rule of liability in the torts law theory. The implementation of such a rule in judging the legal liability of the school authority in a student injury case would undoubtedly leads to the asymmetry or imbalance on the rights and duties of two parties, namely, the school authority and the students. Adopting the rule of Negligent Torts to assess the legal liability of the school authority in a student injury case seems to be acceptable both in practice and in legislation. First, the implementation of rule is in accord with the fact that in a student injury accident, the school authority usually has more access to find out any evidence than that of the parents. It also helps to improve the performance of school in education administration and other legal obligations. Second, when taking the legal requirements of the school authority liability into account, the school authority should assume responsibilities if the three requirements are satisfied. Whether the school authority conducts illegally or not, it is not necessarily required to test his liability. In this situation, the determination of causation should adopt the principle of causation power and a series of both objective and subjective standards. And the subjective negligence of school is not criminated with both causation in fact and legislation. In addition, for the remedy of mental damage of injured students, provision on the school authority’s liability on the particular damage should be applied with a restrictive explanation, where it is liable for the mental damages only if the school creates an unreasonable and direct mental harm to students and caused serious consequences (the degrees of serious injury, disability or death etc). Therefore, the judgment of the liability of school authority should be realized as a mixture of both subjective and objective faults. This judgment can be measured quantitatively too. Problem of judging school authority’s damage liabilities could be resolved under a fair, equal and true principle, with the benefit of applying those rules. As a result of aboved analysis and discussion, it is possible to get a more quantitative and statutory definition on the liabilities of the student injury cases. Generally speaking, the statutory responsibilities of school may contain these responsibilities for damage caused by improper measures, deficient prevention or third person’s mistake and so on. Nevertheless, the liability caused by a third party’s fault is regarded as “presentational referred duty” .Thus, there are four legal conditions in which the school authority has no responsibilities on injury accidents. The first type is the accident that happens on student’s own way to school or home, the second is the accident that takes place when student are out of class during holiday, after-school time, or other spare times beyond school operation schedule. The third type is the accident when the injured student is asked to stay in campus but he escapes due to his own fault. And the four type is the accidents that occurs beyond the legal duties of school authority in their administration and prevention job. Furthermore, the school authorities may be exempted from undertaking any responsibility in the following five situations: (1) It is the student himself or the underage student guardian's fault that leads to the accident. (2) It is other litigants' fault that leads to the accident. (3)The accident caused by force majeure, or other accidental factors. (4) The accident results from any teacher or other staffs non-duty behaviors. And (5) The accident is caused by intentional offence of either the student, the teacher or other individuals. An analysis on plenty of student injury cases and practices, according to such categorized statutory provisions respectively, will greatly contribute to the juridical practice. Moreover, another way to classify the legal liabilities of the school authority could be used to divide those liabilities into three forms, the civil, administrative and criminal liabilities. Damages for mental injuries of students in campus refers to the compensation for the torts students suffer from in campus, such as health right, physical right, reputation right and privacy right and mental health. All these injuries caused by teachers, other students and the third party should be compensated pursuant to General Principles of the Civil Laws of the People’s Republic of China and Education Law. The relevant regulations of education authority must be in accordance with the foregoing laws. Where school and its managers are responsible for the compensation for mental injuries of students, fault responsibility principle for fault assumption should apply; when such cases occurs among students, the liability should be determined by fault responsibility principle. The school should assume compenstation responsibility on the mental injuries caused by teachers’ duty infringement and the injuries on other students by guardians. The compensation modes for mental injuries include disability damages, decease damages and mental condolence compensation and mental remedy for reputation recovery, request for stopping tort and apologies, etc. As a part of the remedy research, this paper discusses the insurance system of student injury as well. This insurance system is designed for the purpose of safeguarding the social reallocation of damage liabilities in student injury cases, and improving current finance problems caused by the refunding of damage remedies. Thus, the goal of this system is to mitigate the school authority and the student guardian’s responsibility and losses. To this extent, it is crucial to establish such a student injury insurance system. Not only the school, but also the students and their parents should participate in the process of insurance project. The school is asked to take the task of providing and extending the school liability insurance and assuming the insurance premium (If necessary, such premium could be assumed by governments or other social organizations). The compensation or damages could be funded under the social security mechanism. While the student accident insurance could be covered by the students and their guardians. But it does not mean that the school cannot forces students to cover insurance. Instead, schools are responsible for promotion, assistance and communication duties. Otherwise, this system would easily bring about unexpected results. However, the Chinese government currently inhibits school to join the personal accident insurance, which actually impedes the handling of student injury cases. Therefore, many schools are prevented from participating in students’ life insurance. As one of the research conclusions, this paper .highlights the function of insurance system in student injury. To improve the serious situation in China, it is urgent to establish an effective in-campus insurance mechanism and assure its sound operation. This paper seeks to examine related issues of China’s in-campus injury in both academic and practical research methods. Through a study on the above issues related to in-campus injury, the article analyzes the specific situation in China and comes to several advices, its legal relationships, the duty of prevention, the rule of liability, the system of treatment, and the promotion of insurance, etc. We hereby put forward the following eight suggestions: First, the term of injury should be clarified as the accidents of student injury. Second, the relationship of school and students is regarded as a kind of social administrative legal relationship of educational management, which means the school is liable to educate, manage and protect students. Third, an integrated safeguard system is crucial for prevention, which is organized in a way that the school and parents should take primary liabilities, while the students themselves and the government has their own responsibility as well. Forth, it is suggested that we should use the rule of Negligent Torts as the rule of liability in such cases, when the onus probandi is converted. Fifth, the school is liable to any mental damages of the student’s physical human right. Sixth, the model of remedy in those cases is supported by promoting a multi-aspect, multi-approach voluntary negotiation between parties where the power of judicature is the latest safeguard. Seventh, if the school is liable for a student’s damage made by a third person’s action, the tort responsibility of school and the person is a kind of presentational referred duty; and it is necessary to have the school liability insurance covered under social security mechanism step by steps. Finally, the school should adopt compellent methods to promote insurance system, and the schools’ supporters are responsible for paying insurance premium. While the insurance against student’ accident is a kind of voluntary one that should be covered by the students and their parents on the bassis of willingness. And such insurance should be promoted by the schools.
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