——With a Review on Article 32 of the Amendment to the  Criminal Law (XI)

 

 

Abstract: The Amendment (Ⅺ) to the Criminal Law of the People’s republic of China responds to the institutional needs of civic education, and supplements the clause of the Criminal Law on protection of citizens’ right to education nuy means of Article 32. Imposing legal responsibility in the form of internal punishments, administrative punishments, and economic compensation have failed to prevent infringements on citizens’ right to education. Its role as a “secondary protection law” is the conceptual obstacle that hinders the Criminal Law from effectively intervening in the field of citizens’ right to education. The equivalence between the legal interests of people to the right to education and the rights protected by the existing charges in the Criminal Law is the legitimate basis for it to intervene in disputes over the right to education. Based on Article 32 of the Amendment (Ⅺ) to the Criminal Law of the People’s Republic of China, it is suggested to further clarify the prepositional law, improve the liability provisions for the right to education, change the modest and restrained view of the Criminal Law regarding protection of the right to education, and expand the behavior types of Article 32 provided in the Amendment (Ⅺ) in due time.

 

Keywords: the right to education     functional improvement     the  secondary protection of criminal law     the positive view of criminal law     reform path

 

 

The Right to Education plays a crucial role in people’s personal development  and self-realization of the value of life. In essence, it is the right of fair competition  for the individuals by gaining knowledge, improving and cultivating themselves, and  developing specific characteristics to adapt to the social development. The Right to  Education is not only the basis for individuals to acquire skills for their livelihood  but also the premise for identifying self-worth. As a fundamental right of citizens,  the degree of the legal protection of the right to dducation can be regarded as a key  indicator of the development of the Education Law. In judicial practice, despite the  Qi Yuling case¹ in 1999, incidents that infringe upon citizens’ right to education have  occurred from time to time. In this regard, the Amendment (Ⅺ) to the Criminal Law of the People’s Republic of China (hereinafter referred to as the “Amendment (Ⅺ) to the Criminal Law”) focuses on recent incidents and legal cases related to education in China, and responds in a responsible manner to public appeals for the legislative protection of the Right to Education by imposing criminal penalties on those who violate that right.² After the revision, such cases of imposture as the typical Qi Yuling  case have been included in the scope of criminal law regulation in China. With the  analysis of the status quo of legal protection for Chinese citizen’s right to education,  this paper aims to determine the legal basis for the criminal protection for the right  to education in China. In other words, under the institutional positioning of the  Criminal Law as a law protecting legal interests,³ it explores the considerations for  China’s Criminal Law intervening in the protection of citizens’ right to education. In  fact, China’s Criminal Law, prior to the Amendment (Ⅺ), refers only to the indirect  crimes in view of protecting the examination order and the peripheral crimes involved  in individual cases, with no direct charge for protecting the right to education.⁴ In  consequence, it failed to deter violations of the right to education or sanction those guilty of violating that right. In this regard, following the issue of the Amendment (Ⅺ)  to the Criminal Law, the right to education, as an independent type of legal interest,  has been officially incorporated into the regulatory scope of the Criminal Law of  China. Recently, there have been some new types of illegal behavior infringing on  the Right to Education in China. For example, in March 2018, Zhang Jun, the Dean  of the School of Computer Science and Engineering of South China University of  Technology, organized many people to tamper with the scores of the secondary  examination of the postgraduate entrance examination, which made many students not  only fail to be admitted but also denied them the chance to apply for a transfer to other  majors.⁵ In 2019, two cases of malicious falsification of an application for college entry occurred successively in Henan Province and Zhejiang Province.⁶ In view of  social harmfulness and criminal hysteresis of these unlawful actions, this paper looks  forward to the future expansion of behavior types constituting the crime of infringing  on the citizen’s right to education, so as to expand the scope of protecting the right to  education in the Criminal Law of China.

 

II. Functional Complement of Criminal Law to the Right to Education 

As of 2019, there had been 530,100 schools of all forms at various levels in  China, with 282 million students receiving academic education of various forms at  different levels.⁷ Due to a large number of educated people in China, it is particularly necessary to make legal protection (especially the precise and special protection) for the right to education of citizens.

 

 

As stipulated in Article 46 of the Constitution of China, “Citizens of the People’s Republic of China have the duty as well as the right to receive an education. The State promotes the all-round development of children and young people, morally, intellectually and physically.” Although this article comprehensively stipulates citizens have the right to education and sets it as a constitutional duty for citizens to practice that right, it cannot serve as the basis for directly adjusting the right-duty relationship of the Right to Education of citizens. Currently, the legal attributes of the right to education in China can be studied from the following two perspectives: First, since minors have not fully developed physically and mentally and their awareness of enjoying the right to education has not yet taken shape, their right to education is transferred to their parents and the home country based on the “theory of parental rights,” when the citizen’s right to education has the attribute of social right, and then the “dualistic subject structure” of the right to education is formed, that is, the right to education shall be shared by the citizen and the citizen’s parents⁸, and the  parents and guardians have the duty to protect the right to education of the minor.  Second, in line with the systematic interpretation, the essence of Article 46-2 of the  Constitution which stipulates that “the State promotes the all-round moral, intellectual,  and physical development of children and young people” is to protect the right to  education of minors. In China, the right to education can be divided into two stages:  primary education and higher education. In the stage of higher education, the right  to education is completely enjoyed by individuals due to the mental maturity and the  strengthening of subject awareness of the right, and its attribute as a right of freedom  is increasingly obvious. As scholars have stated, the value of the right to education in  primary education is equality, while that in higher education it is freedom.⁹

 

China has more than 10 laws and regulations related to education, which have primarily formed an educational law system. However, it should be noted that the current education legislation and regulations focus on the administrative system supporting the protection of the right to education of citizens. These are obligatory rules for local governments and educational units but rarely mention the legal solutions to the disputes over the right to education. The right to education as specified in the Constitution, due to its abstractness, cannot be used as the basis for citizens to directly claim protection for their right to education. As a result, the right to education of citizens is often difficult to be implemented in specific litigation. Only when the right to education is specifically implemented in the Departmental Rules can this right truly serve learners.¹⁰

 

In terms of the right to education at the level of administrative law, although it is aimed to expand the scope of case acceptance of administrative litigation in China by enumerating and revealing all details, only the educational management act is among the more than 20 kinds of administrative acts currently in place. It has not been explicitly stipulated that the infringement of the right to education should be taken into the scope of case acceptance. There is only “other administrative acts” mentioned in Item 8, Article 11-1 of The Administrative Procedure Law available for reference. Due to the lack of a consistent and applicable standard for disputes relating to the right to education, and the complex and diverse legal relations involved in the right to education, it is difficult for administrative litigation to achieve full coverage, and courts all over the country draw different conclusions. The academic community is committed to making an administrative litigation system covering the right to education but the system is limited to disputes on the right to education between universities and students rather than considering whether such disputes between equal subjects shall be included in the acceptance scope of administrative litigation. In fact, the infringement of the right to education of citizens such as Qi Yuling case and Luo Caixia case has not yet been fully regulated by law, which leads to the lack of effective protection of citizens’ right to education. Civil litigation, as some scholars have said, is “confined by the traditional public/private dichotomy, the theoretical basis and necessity of the civil remedy for the Right to Education so the issues are confronted with challenges and doubts within academic circles and the judicial practice.”¹¹ In other words, whether the right to education is a civil right remains to be discussed, and remedy for its violation through civil litigation has yet to become feasible.

 

Therefore, the prepositional law still fails to realize the “self-discipline” of the right to education of citizens. It is precisely the absence of superior legislation and the lack of remedies in the Department Rules that the Criminal Law cannot be invoked as the “Secondary Protection of Criminal Law.” However, rights violations need to be remedied. As time passes, the act of infringing on the right to education shows the characteristics of invisibility and intelligence. Such methods of bearing liability with only internal punishment, administrative penalty, financial reimbursement, or compensation are not enough to prevent the relevant subjects from violating the right to education of citizens.

 

 

As a “Secondary Protection of Criminal Law,” the Criminal Law will by no  means promptly and effectively intervene in disputes related to the right to education  of citizens. This technical path based on the “modest and restrained principle of  criminal law” evolves into the “theory of secondary illegality of criminal law,”  which constitutes the theoretical obstacle of the criminal law to regulate the Right to  Education. In line with the progressive model of “prepositional law-criminal law,”  the criminal penalties can only be “imposed by other laws.”¹² Otherwise, it will be alien to the requirement of “the modest and restrained principle of criminal law” and included in the emotional legislation, which would shut the door against the criminal law forever, so that the theories on the remedies of the right to education are always confined to the levels of civil law, administrative law, and the Constitution. In other words, following the concept of the Secondary Protection of Criminal Law is more conducive to the decriminalization of slight crimes, so as to more scientifically define the regulation scope of the Criminal Law. However, it is required to have the complete prepositional law so as to use the Criminal Law for regulation in case of an invalid legal adjustment with other laws. Therefore, the completeness of the prepositional law system is the premise of the theory of the “Secondary Protection of Criminal Law.”

 

As mentioned above, most of the prepositional provisions on citizens’ right to education are more principled and abstract, and the Administrative Law and Civil Law even lack special provisions. Therefore, it is difficult to convict those who infringe upon citizens’ right to education within the scope of violating the “secondary norms.” Although some acts that seriously infringe upon citizens’ right to education have obviously broken the Administrative Law and the Civil Law, the Criminal Law cannot effectively intervene in citizens’ right to education due to the identity concept of the secondary law. In fact, both in theory and practice, the practice of adhering to the concept of the “protection act of criminal law and its secondary law” has virtually let the potentially criminal behaviors go unchecked. Before the Amendment (Ⅺ) to the Criminal Law, the related charges including cheating in an examination and the recruitment of national civil servants, and such misconduct as favoritism and imposture, falsification of test scores and applications for college entrance, and fraudulent enrollment of students failed to provide a well-matched legal basis. The current Education Law does not cover the typical cases infringing on citizens’ right to education, both in the types of legal interests, subject identification, and behavioral mode.

 

As scholars have said, the reason why Criminal Law imposes penalties on  criminals is that their behaviors seriously endanger society. The appeals for national  and social justice demand criminals have accountability for the adverse consequences  of their illegal behaviors.¹³ The “functional orientation of protection by law” means that the main task of the Criminal Law is to strengthen the protection of legal interests. Obviously, the legal interests destroyed by such misconduct as stealing someone’s identity for college admission, falsification of the scores in the college entrance examination, and false application for school admission, are far worse than that of disrupting the “examination order” by cheating in an examination. The latter behavior mainly interrupts the order and seriousness of national examination and the system of national talent selection. A law that punishes such behavior reflects the strong value orientation to safeguard social integrity and fair competition.¹⁴ The right to education  of citizens contains the values of fairness, justice, and equality, as well as the synthesis  of rights and functions including the right to educational freedom as well as the right  to education. Given this, the Criminal Law shall no longer negatively regulate the  violation of citizens’ right to education due to the absence of prepositional law, and  it is inevitable that the criminal law intervene in the right to education in China. The  Criminal Law shall serve as a reliable cornerstone for protecting citizens’ basic rights,  play its due role as the “law of last resort,” and seek a balance between promoting  the sound development of the right to education and preventing the intervention of  infringement upon the right to education.

 

 

This paper holds that the degree of damage to legal interests by infringements on the right to education is comparable to the existing charges stipulated in the sub- system of criminal law in China. In other words, the equivalence between the legal interests of the right to education and those protected by the existing charges is the rational basis for the Criminal Law to be the basis for cases involving the right to education.

 

 

“Fairness” is the eternal value pursuit of human society. To some extent, fairness signifies the reasonable distribution of resources, namely, a reasonable distribution of various rights and interests within the scope of society under certain historical conditions. In the contemporary context, fairness means to respect freedom and individual rights, and reasonably plan and distribute the rights and obligations of citizens and continue the social development with the universally moral rationality of citizens. In other words, how far fairness is realized in society is a kind of common experience and influences how citizens view the protecting of the social order and their rights and interests. It reflects the “basic demands” for the vast majority of the public. Correspondingly in the level of education, it means a kind of hope of the public for educational justice. The fair distribution of educational resources is indispensable for Chinese citizens to change their fortunes and has attracted much attention from the public. Since the stage of higher education is a key period for the improvement of personal knowledge and the broadening of the scope of social exchange, receiving higher education is related to the formation and shaping of the relationship of mutual identification between individuals and between individuals and social groups, which has a special positive significance for the cultivation of an individual’s personality and the formation of behavioral norms. From the ancient “imperial examination system” to the modern “college entrance examination system,” the meritocratic selection system through examination in China has always been a key measure of fluidity between social classes, and also the best opportunity for individuals to change their fortunes. Especially for students born in poor families, the college entrance examination or the right to enjoy higher education carries the hope of an individual or even a whole family. If the achievements that citizens deserve with their toil are enjoyed “unearned” by others, it sabotages social fairness abd makes it difficult to effectively protect the future of citizens.

 

The right to education of citizens reveals the concept of “social institutional equity,” which has not only the abstract appeal for educational equality but also the expectation of the stable operation of the concrete educational system even including a series of personal and property rights and interests attached to educational opportunities. From the national level, the establishment of the education system must start with the equal protection of citizens’ right to education. From the perspective of individuals, the right to education means the possibility of self-control of personality development, and admission to a higher education institution means opportunities and rich resources, or even the right to develop a sound personality, make self- achievement, and pursue happiness in life. The right to education is the basis of human rights, which can be regarded as “human rights within human rights.”¹⁵ Behavior that infringes on the right to education brings about a change in the life path of the person who’s right is violated. As for the social aspect, if the victim of the violation of the right to education cannot obtain effective legal relief, it inevitably reduces the credibility of the national education system. The ineffective protection of citizens’ right to education is an “unbearable weight” for the present immature legal system in education. Compared with the crime of cheating in examinations stipulated in the Special Provisions of the Criminal Law, behavior that directly infringes on the right to education of citizens is more harmful to society. If those convicted of the crime of cheating in an examination are guilty of disrupting the education order, talent training, and selection, and making the selection mechanism lose its due significance, and undermine the the environment of fair competition and social integrity,¹⁶ behavior that  infringes on the right to education does even more.

 

Such behaviors as stealing a person’s identity to enroll in college, tampering with test scores, falsifying an application for college or enrollment in the college entrance examination destroys social fairness and the integrity of the education system, reduces the credibility of the education system, disrupts the fair order of an examination, even deprives the victim of the free choice of life planning and tgheir personal development. The harm done by infringing on a citizen’s right to education is much worse than someone cheating in an examination.

 

 

The Right to Education of citizens is always related to such departments as education, household registration, and archives management, as well as colleges and universities. From selecting victims, illegally obtaining files, forging household registration to keeping colleges and universities from checking the information, it may involve abuses of power, power-for-money deals, and acts that constitute crimes including counterfeiting the documents of State organs and stealing citizens’ personal information. Therefore, it is not conducive to the adequate protection of citizens’ right to education for victims to have to resort to the prepositional law. In the Qi Yuling case, “the first case of constitutional judicialization,” we can see that the problem of infringing on a citizen’s right to education could not be effectively solved at the constitutional level. On the one hand, the right to education stipulated in the Constitution mainly limits the government, namely, the government has the obligation to provide relevant educational resources to protect the right to education of citizens. The purpose of the stipulation is not to restrict individuals directly by the Constitution beyond the authority of the government. On the other hand, although the right to education in the Constitution clearly defines the nature its nature as a fundamental right, it is difficult to achieve practical legal effects if it is not implemented under the Departmental Rules.

 

Although the Criminal Law has intervened in cases involving the violation of citizens’ right to education, this has been based on the accompanying punishment. By reviewing the current Criminal Law, crimes were it has intervened have usually been in relation to punishment for “assisting behaviors,” such as forging, altering, buying or selling documents, certificates, and the seals of State organs; forging, altering, buying or selling resident identity cards; taking bribes; dereliction of duty; abuse of power; recruiting students for personal gain; destroying computer information; recruiting civil servants for personal gain; and other charges. The above behaviors infringing upon the right to education seem to violate the law. For example, for actions that constitute the crime of using false identity cards or the crime of stealing identity cards, the non- State staff involved may be guilty of the crime of bribery or the crime of forging the seal of a public institution, while public officials may be guilty of the crimes of abuse of power, dereliction of duty, accepting bribes and so on. However, it remains to be considered whether the above charges can comprehensively evaluate the damage done to citenzens whose rights to education have been violated.

 

Investigating the perpetrator’s responsibility for the crime of forging the documents of State organs and the crime of using false identity violates the requirement of the principle of “balancing the crime and punishment,” and makes it difficult to achieve an equivalence between the crime and responsibility. In the incidents of infringing on the right to education, the most harmful is the action itself. For example, the act of impersonation in the case of “surrogate learning” is the emphasis of criminal regulation. The degree of social harm caused by this act is not less than that caused by the crime of forging the documents of State organs and or identity documents. The types and forms of legal interests which are violated cannot be covered by the two charges.

 

The crime of forging, altering, buying and selling official documents of State organs and the crime of forging, altering, buying and selling resident identity cards” belong to the “crime of disturbing public order. In other words, the type of legal interest protected from the two crimes is the social public order. However, the legal interests related to the deeds that violate the right to education are not limited to public order but include citizens’ right to education, the potential personality development, and the credibility of the national education examination system. The specific analysis shall be made for whether the problems of loose qualification examination on archives and personnel constitute the crimes of dereliction, and recruitment for students or civil servants for personal gains, and such, by the personnel department of State organs and such public institutions as schools in the recruitment of staff and students. The above three crimes are the identity crimes with personnel identity of State organs as the premise, which are therefore inapplicable for teachers, principals, and other personnel in schools and other public institutions, whose negligence in the performance of their duties is therefore treated with innocence. As for those who have made general negligence which cannot be counted as dereliction of duty, no illegalities can be identified at present. Therefore, such behaviors are difficult to identify as the crime of dereliction of duty or the crime of recruiting public officials with illegalities for personal gain.

 

Due to the concealment and diachronic nature of the violation of citizens’ right to education, the existing charges are difficult to be truly applicable. This paper holds that it is not conducive to the comprehensive protection of the citizens’ right to education to punish only those guilty of assisting behaviors rather than the actions that directly infringe on the right to education. It should be mentioned that whether the perpetrator commits a crime or not should be determined by the perpetrator’s act, which is the core element of constituting a crime. As long as the act causes certain damage to a person’s legal interests, the perpetrator has the culpability of criminal law. In reality, whether it is impersonation or the falsification of test scores and student status, it is inevitable to use power or ask others to help forge or alter relevant materials or certificates, and then implement the impersonation or cheating for school admission. The former is only the means, while the latter is the purpose and crucially causes harm to others and society.

 

In addition, acts infringing on citizens’ right to education not only violate the fairness and authority of China’s education system, seriously encroach on social public interests, social order, and the stability of the social system, and also rewrite the life track of others and deprive others of their rights and development interests. Compared with the crimes of cheating in an examination, replacing others to take an examination and other charges stipulated in the Special Provisions of the Criminal Law, the violation of citizens’ right to education is even more harmful to society, since such acts are often accompanied by the forgery of documents, abuse of power and other illegal deeds. False enrollment and backdoor enrollment are closely associated with power-for-money deals. The behavior of tampering with test scores and voluntary replacing someone in an exam are closely related to the behavior of infringing citizens’ personal information. In light of the results of the infringement on legal interests, although cheating on examination constitutes a crime, it may not crowd out the admission opportunities of other candidates. For example, obtaining all or part of the wrong answers by cheating does not necessarily grab the admission opportunities of others, but if directly taking the place of others, it would certainly affect the future life of the victim. It can be said that from the perspective of the complexity and degree of the damage to the legal interests in general, the harmfulness of violating the right to education is even more severe than that of the existing crimes, and its hazard to society should not be underestimated. Therefore, based on the principle of the punishment fitting the crime, the right to education of citizens should be incorporated into the protection of the Criminal Law.

 

 

It is difficult to effectively defend the right to education of citizens by holding on to the traditional view of the secondary protection of the Criminal Law. Therefore, it is urgent to change the way of thinking and absorb the core spirit of the positive view of thr Criminal Law. As for the emerging phenomena in social life, we should no longer focus on the “result of actual harm” and emphasize the “positive view of legal interests,” and introduce active case finding in legislation and active assessment of the potential risk or actual harm of legal interest in the future and follow up in time to establish a relatively low standard for the misdemeanor.¹⁷ Of course, affirming the  positive view of Criminal Law will not challenge the position of the Criminal Law  as a protective law with modest and restrained nature, but it does not mean that the  Criminal Law should be overcautious to passively wait for the “invalid adjustment of  other legal norms.”¹⁸ The criminal law should take the initiative to seize a place in the key field related to the fundamental rights of citizens, so as to truly realize the “strict but not harsh” regulation in the network of the criminal law.¹⁹ Therefore, under the  premise of improving the prepositional legal provisions, it is necessary to change the  existing concept of the criminal law to establish a scientific and reasonable positive  view of the criminal law, strengthen the construction of criminal law norms in the  field of citizens’ right to education, allocate those crimes to which “lenient” penalties  are applicable, and add a tool for the protection of the right to education of citizens.

 

 

Being free from the concept of the secondary protection of Criminal Law does not mean that the prepositional law is less important. Criminal Law is not the only means of social governance. The protection of citizens’ right to education also depends on other means of social regulation. Therefore, it needs not only a clear and reasonable adjustment of criminal law norms but also complete prepositional laws and regulations matched with effective prepositional law enforcement mechanisms. As mentioned above, China’s education law system has been taking shape, but there are few punitive clauses for the infringement on citizens’ right to education. In consequence, it is necessary to further improve the content of responsibility of the educational prepositional law.

 

Such prepositional laws as the Education Law and the Higher Education Law stipulate only in the chapter of legal responsibility that “if a crime is constituted, the criminal responsibility shall be investigated in accordance with the law.” It is not clearly stipulated that when a crime is constituted, what charges are applied, and which law is applicable and other matters. As scholars have said, the frequent use of such legal expressions is in essence a reflection of some slogan culture in the society in its legislative activities. It cannot improve the prestige and effectiveness of the law, but will affect the internal coordination and external image of the legal system, and reduce the taste of the legislative culture.²⁰ How to establish the liability clauses shall  depend on the specific prepositions used in the law, with no need of following the  same pattern.

 

Specifically, it is more flexible and maneuverable to enact a special article in prepositional law to make detailed provisions on the investigation of criminal responsibility or specify the specific charges applicable to criminal law in the descriptive provisions of the preposition law. Socially enforced censure and condemnation is a kind of scarce resource and shall be applied to limited misdeeds, namely, penalties shall be reserved for wrongdoers who commit a serious breach of law.²¹ Therefore, the sanction in the prepositional law shall not be limited to  “investigating criminal responsibility,” but be expanded to the administrative and  civil sanction measures such as reparations and disqualification. However, all the  sanction clauses must be clear and specific, otherwise, they shall hardly play the role  of the prepositional law. Therefore, it is urgent to improve the system of education  law in China. Specific contents of criminal responsibility shall be added to the special  chapter of legal responsibility of the education legislation such as Education Law and  Higher Education Law, or the legal consequences of infringing upon citizens’ right to  education shall be stipulated in the administrative regulations.

 

 

Sticking to the modest and restrained view of the “secondary law” theory of  criminal law with the conventional concept of limiting punishment to administrative  crimes with clear characteristics of being illegal, without realizing the changes of  present social situation or the value concept of fairness, justice, and freedom of citizens’  right to education, is not entirely applicable in the rapid development of modern  society. As Professor Zhang Mingkai said, “currently China needs to adopt the positive  view of criminal law and meet the reasonable requirements of protecting legal interests  by adding new crimes. The positive view of criminal law is not the so-called radical  view of Criminal Law.²² The positive view of criminal law has been gradually formed in the Criminal Law Amendment (VIII) and Criminal Law Amendment (IX). The preventive features of the criminal law gradually emerge through the early intervention of the Criminal Law to effectively prevent and control risks. The preventive thinking compels us to abandon the traditional view of the Criminal Law under the rule of law, transforming it from the law with incomplete character (last resort) that only punishes the infringement on legal interests with a responsibility to a flexible anti- crisis mechanism.²³ It shows that the core of the positive view of the Criminal Law is  to lay more emphasis on retribution and utility, and focus on crime prevention while  weighing the effeects of any infringement of legal interests. It advocates that Criminal  Law shall actively intervene in all areas of social life, so as to better deal with various  uncertain risks and maintain the overall order of social security. The specific ways of  intervention of the positive view of the Criminal Law are as follows: (1) Expanding the  criminal circles gradually with penalty intervention in the early stage; (2) Focusing on  the positive prevention in general, and advocating the diversification of punishment; (3) Adding necessary crimes for the offense of abstract danger, the offense of act, preparatory crime, and so on. Such infringements on the right to education as stealing other’s identities for school admission, tampering with test scores and application forms, and falsifying enrollment will aggravate the decline of social integrity. Once such behavior occurs, it will surely result in hazard by depriving others of the right to education. Without effective countermeasures, such behavior will run wild. Moreover, in terms of the applicable charges for infringing on the right to education in practice, there is a lack of well-matched appropriate charges, which makes it difficult for judicial personnel to apply in practice, and further results in the failed regulation by the Criminal Law of serious infringements on citizens’right to education.

 

Therefore, the Criminal Law should include precautions to intervene and protect citizens’ right to education and strengthen the normative guidance for protection of the right. As for the act of infringing on the right to education, the Criminal Law shall intervene in advance reasonably when the perpetrator is preparing the violation of the right to education. For the acts that have not caused serious consequences, penalties shall be imposed as well, since the harm is irreversible. In short, the Criminal Law shall transcend the barrier of “secondary protection of the Criminal Law” and actively regulate harmful behaviors in the field of the right to education.

 

 

The complexity of infringements on the right to education lies in the diversity  of legal relations involved. Even in a simple case of the right to education, the  civil, administrative, and criminal legal relations often coexist, and then there is the  intersection of illegal and criminal acts in this mixed type of behavior. But in practice,  the administrative punishment or the round-about way of criminal disposal can not  have a full effect on regulation and prevention. Although the Amendment (Ⅺ) to the Criminal Law has added provisions on stealing or falsely using other’s identity to replace other’s qualification for higher academic education, there is still room to expand the types of behaviors regulated by te law. In this regard, this paper suggests supplementing the behavior types of Article 32 of the Amendment (Ⅺ) to the Criminal Law in the form of judicial interpretation or Amendment in due time, to further strengthen the protection of citizens’ right to education.

 

On the one hand, the scope of powers and functions of the right to education shall be conceptually enlarged. The Amendment (Ⅺ) to the Criminal Law shall stipulate the same penalties as those for infringements on citizens’ qualifications for school admission, qualifications for being employed as civil servants, and benefits for employment placement, to provide equal protection. It reflects the tendency of expanding the applicable scope of citizen’s right to education. The right to education refers to the equal conditions and opportunities provided by the State that citizens enjoy according to law, and the right and ability to develop personality and intelligence mentally and physically through learning. Its essential attribute is the right to learning, which is a differentiation of free rights, including learning opportunity right (right to qualification ), learning resource option (right to option of education right), and right to student identity.²⁴ Therefore, the right to education is a basic right for people to acquire knowledge and skills in various ways to promote the free development of their own personalities.²⁵ To be specific, the connotation and extension of the “right to  education” should be limited to: (1) The right to education qualification, namely, the  right to obtain admission qualification, conditions, identity, and other qualifications  by passing the nationally influential examinations stipulated by national laws.  Qualifications obtained after passing such examinations are equally recognized and  applied at the national or local level, which is mainly classified into three kinds of  examinations: education examinations, civil servant qualification examinations, and  vocational qualifications certification examinations. The education examinations cover  mainly the college entrance examination, the postgraduate entrance examination, the  doctoral entrance examination, the higher education examination program for the  self-taught, the entrance examination for adult higher education, and other national  examinations for talent selection.

 

This kind of examination has a wide range of influence and a significant impact on the careers of individuals. It is related to social issues such as education equality and fair opportunity for competition in society. The civil servant qualification examinations are mainly the civil servant recruitment examinations at the central and local levels. The vocational qualifications certification examination mainly refer to professional examinations with a high degree of value and recognition, such as examinations for a legal professional qualification, certified public accountant, registered architect, teachers’ qualification, and doctors’ qualification. (2) The right to claim education. It is mainly the requirement of equal education, including the opportunity, quality, and quantity of education. Of course, the right also involves the self-determined options in essence, for school, major, and filling in the application form. (3) The right to free education. The scope of freedom means the degree of realization of individual will. The core of the right to education is freedom. The right to education, as a comprehensive right of self-realization, is essentially the right of freedom. In addition, the crime against the right to education is not limited to the process of the above examinations but should be extended to the periods before the examination starts and until the examination results are announced, or from the beginning of the enrollment to the announcement of the results, since the competition among candidates has not yet finished. Throughout the period there is still a high incidence of infringing on the right to education.

 

In addition, the behavior types infringing on the right to education should be further detailed. In order to protect citizens’ right to education more comprehensively, it is necessary to classify the existing behaviors that infringe citizens’ right to education and build protection in the Criminal Law. Specifically, in the major national entrance examination or enrollment stipulated by law, the behaviors that disrupt the order of national examination and infringe upon citizens’ right to education can be divided into two major types (see Figure 1).

 

 

 

The first is the existing regulations of the Criminal Law, including cheating in exams, surrogate exam taking and illegal selling of test questions, and the newly added stealing and false use of other’s identities to obtain qualifications for higher academic education in Amendment (Ⅺ) to the Criminal Law. Second is the types not regulated by the existing Criminal Law which can be summarized into the following three categories: (1) Filling in or modifying other’s application forms for college entrance without authorization; (2) Tampering with other’s test scores or taking tests in the name of other people to obtain false scores or admission qualifications; (3) Forging certificates of student status and academic degrees to obtain admission qualifications.

 

In view of the classification of the behaviors infringing on the right to education in judicial practice, it is suggested to adopt the dual design of crime by listing and revealing the details: strictly distinguish the general and less harmful behaviors of cheating and the more serious practices, and incorporate the new forms and new types of criminal behavior that will probably occur into general, open text norms. The criminal penalties for charges related to the right to education should be strengthened so as to shut the door on the behaviors such as bringing a cheat sheet that causes limited harm, thus reflecting the Criminal Law as the remedy of last resort and making the crimes and punishments more scientific and proper. Meanwhile, this move is conducive to reconciling the tension between the stability of the Criminal Law and the new behaviors that violate the right to education caused by the rapid social development and sticking to the last resort of penalty.

 

(Translated by XU Chao) 

 

 

* JIA Jian ( 贾健 ), Associate Professor, Doctor of Laws, Master Supervisor of the School of Law, Southwest University of Political Science and Law.

 

**YU Yanjuan ( 余燕娟 ), Assistant Researcher, Juvenile Delinquency Research Center, Southwest University  of Political Science and Law. This paper is a phased research result of the Key Project supported by the  National Social Science Fund, “Study on the Relationship between the Rule of Law and the Rule of Morality”  (14AZD135); The Key Project of Philosophy and Social Science Research of Ministry of Education,  “Study on Promoting the National Inspection and Supervision Covering all Sectors” (18JZD037); and the  Postgraduate Scientific Research Innovation Project of Southwest University of Political Science and Law,  “Research on the Issue of Criminal Law Protection of Citizens’ Right to Education” (2019XZXS-066). 

 

 

1. In the case known as the “first case of constitutional judicature”, Qi Yuling and Chen Xiaoqi took the  qualifying examination for Secondary Specialized School in the same year. Chen Xiaoqi failed to pass the  examination, but his father Chen Kezheng pulled strings to steal the identity of Qi Yuling for Chen Xiaoqi to  receive QI’s letter of admission and attend Jining Business School (Shandong Province). The case was settled  in a civil lawsuit according to the “Rescriptum on Whether Civil Liability Shall be borne for Infringing upon  Citizens’ Basic Right of Education Protected by the Constitution by means of Infringing upon the Right of  Name” issued by the Supreme People’s Court, which was abolished in 2008.

 

2. As stipulated in the Article 280-2 added in the Amendment (Ⅺ) to Criminal Law, “Stealing or fraudulently  using another’s identity to obtain their higher education qualifications, civil service entrance qualifications,  and employment placement benefits is to be sentenced to fixed-term imprisonment of not more than three  years, short-term detention, or restriction, and shall be imposed with a criminal fine. Organizing or instructing  others to carry out the acts mentioned in the preceding paragraph is to be punished heavily in accordance with  the provisions of the preceding paragraph. Any national functionary who commits any act mentioned in the  preceding two paragraphs and other crimes shall be punished in accordance with the provisions on combined  punishment for several offenses.”

 

3. Zhang Mingkai, Science of Criminal Law (Beijing: Law Press, 2016), 62-67.

 

4. To be specific, prior to the adoption of the Amendment (Ⅺ) to the Criminal Law, the indirect charges included  in China’s Criminal Law for the Right to Education include: the crimes such as cheating on examination,  illegally selling and disclosing examination questions and answers, and surrogating exam-taker; and peripheral  charges such as falsifying, altering, buying and selling official documents, certificates and seals of State  organs, counterfeiting, altering, buying and selling resident identity card, bribery, dereliction of duty, abuse  of power, illegalities in enrolling students, destroying computer information, and illegalities in recruiting civil servants. 

 

5. Wang Zixuan, “South China University of Technology Announces Tampered Postgraduate Exam Results:  Deans of Computer School Removed and Discharged, Three Expelled from the Communist Party of China”,  Sohu.com.

 

6. Wang Yu, “Seek Technical and Legal Solutions to Prevent the Tampering Application for College Admission”,  People’s Daily online.

7. “Statistical Communiqué of the People’s Republic of China on the 2019 National Educational Development  ? New Progress in all Forms of Education at All Levels”, Official Website of the Ministry of Education.

 

 

8. NI Hongtao, Study on the right to Learning of College Students and Its relief (Beijing: Law Press, 2010),

102-103.

 

9. ZHENG Xianjun, “The Constitutional Attributes of Citizens’ Obligation to Education”, Journal of East China  University of Political Science and Law 2 (2006): 123.

 

10. Chen Shaofeng, The Dispute on the right to Education and Its Legal remedies (Beijing: Education Science Press, 2010), 32. 

 

11. Zhou Hang, “Step off the Theoretical Myth of Civil Relief of the Right to Education”, Fudan Education  Forum 6 (2020): 33.

 

12. Jiang Aoli and Yang Xingpei, “Rediscussion on the Theory and Practice of the Characteristics of Secondary Illegality of Crimes”, Jianghan Academic 5 (2016): 37-45. 

 

13. Jia Jian, “Research on the Criminalization of Doping Abuse”, Journal of Wuhan Institute of Physical  Education 7 (2015): 47.

 

14. Zhao Hao, “Analysis and Countermeasure Research of Cheating on College Entrance Examination”, Contemporary Education Sciences 23 (2015): 59. 

 

15. Zhou Zhihong, Education Law and Education reform (Beijing: Higher Education Press, 2003), 522-523. 

 

16. Zhou Guangquan, Strafrecht Besonderer Teil (Beijing: China Renmin University Press, 2016), 348-349. 

 

17. Zhou Guangquan, “The Establishment of Positive Legislation View of Criminal Law in China”, Legal  Studies 4 (2016): 24. 

 

18. Fu Liqing, “On the Positive View of Criminal Law”, Political and Legal Forum 1 (2019): 101-102.

 

19. Chu Huaizhi, Study on Criminal Integration (Beijing: Peking University Press, 2007), 53-67.

 

20. Chen Su, “Analysis of ‘If a crime is constituted, criminal liability shall be investigated according to law’”, newspaper of People’s Court, August 10, 2005. 

 

21. Guan Kui and Yang Chunran, “On the Nature of Punitive Compensation”, Hebei Law Science 11 (2012): 27.

 

22. Zhang Mingkai, “The Concept of Adding New Crimes — Support for The Positive View of Criminal Law”, Modern Law Science 5 (2020): 150.

 

23. Gu Chengzong, The Symbolization and regulation rationality of Criminal Law (Taiwan: Yuanzhao Publishing House, 2017), 63. 

 

24. Gong Xianghe, on the right to Education (Beijing: People’s Public Security University of China Press, 2004), 29-33.

 

25. Sun Xiaobing, Jurisprudence of the right to Education (Beijing: Education Science Press, 2003), 38-39.