Guiding Cases in PerspectiveTM

指导性案例透视 TM

TIAN Yong

v.

The University of Science and Technology Beijing,

A Case of a Refusal to Award

a Graduation Certificate and a Degree Certificate

Guiding Case No. 38

(Discussed and Passed by the Adjudication Committee of the Supreme People’s Court

Released on December 25, 2014)

CHINA GUIDING CASES PROJECT

Guiding Case No. 38 Highlighted Edition September 15, 2018*

* The citation of this piece is:《田永诉北京科技大学拒绝颁发毕业证、学位证案》(TIAN Yong v. The University of Science and Technology Beijing, A Case of a Refusal to Award a Graduation Certificate and a Degree Certificate), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases in PerspectiveTM, Guiding Case No. 38 Highlighted Edition, Sept. 15, 2018, http://cgc.law.stanford.edu/guiding-cases/guiding-case-38. The parts highlighted below are essentially the same as the relevant parts in the original second-instance judgment of Guiding Case No. 38. Parts highlighted in yellow and red cover contents included in the “Basic Facts of the Case” and the “Reasons for the Adjudication” sections of Guiding Case No. 38, respectively. The English version of this Guiding Case was published by the China Guiding Cases Project and is also available at the abovementioned hyperlink.

Guiding Cases in PerspectiveTM is a unique serial publication of the China Guiding Cases Project that identifies the original judgments selected by the Supreme People’s Court, examines their transformation into Guiding Cases, and explores the treatment of the Guiding Cases in subsequent cases.

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Keywords Administrative Litigation Award of Certificate Higher Education Institution

Scope of Case Acceptance Proper Procedure Main Points of the Adjudication

1. Where a higher education institution refuses to award an education certificate or a degree certificate to a person who has received an education1 [at that institution] because [he]2 has violated institutional regulations or institutional disciplinary [rules], [and] that person is dissatisfied [with the refusal], he may initiate administrative litigation in accordance with law.

2. Where a higher education institution renders a decision to, among other things, treat a person who has received an education [at that institution] as withdrawing from it in accordance with institutional regulations or institutional disciplinary [rules] that are in violation of national laws, administrative regulations, or rules, the people’s court shall not support [that decision].

3. When a higher education institution, on the basis that a person who has received an education [at that institution] violated institutional regulations or institutional disciplinary [rules], renders a decision affecting that person’s fundamental rights, [the institution] should allow him to defend himself and [should], after the decision is rendered, deliver [the decision] in a timely manner. Otherwise, [this] is regarded as a violation of legally established procedure.

Related Legal Rule(s)

Article 25 of the Administrative Litigation Law of the People’s Republic of China

Article 21 and Article 22 of the Education Law of the People’s Republic of China

Article 8 of the Regulation of the People’s Republic of China on Degrees

Basic Facts of the Case

In September 1994, plaintiff TIAN Yong (田永) passed the [entrance] examination for the University of Science and Technology Beijing3 (北京科技大学) and obtained undergraduate 1 Translators’ note: the term “受教育者” (“a person who receives an education”), instead of “学生” (“student”), is used here. 2 Translators’ note: “he”, “him”, and “his” as used herein are, unless the context indicates otherwise, gender-neutral terms that may refer to “she” or “her”. 3 Translators’ note: the name “北京科技大学” is translated here as the “University of Science and Technology Beijing” in accordance with the name used on the university’s website, at http://en.ustb.edu.cn/AboutUSTB/ShowArticle.asp?ArticleID=209.

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enrollment status. On February 29, 1996, TIAN Yong, while taking a makeup examination4 for an electromagnetism course, carried with him a note5 that had electromagnetic formulas written on it. During the examination, while [TIAN Yong] was on his way to the toilet,6 the note fell out and was discovered by a teacher proctoring the examination. Although the teacher proctoring the examination did not witness him looking at the note secretly, [the teacher] immediately stopped TIAN Yong’s examination in accordance with examination room disciplinary [rules].

In 1994, according to the spirit of the instructions on strict examination room discipline [issued by] the former State Education Commission, the defendant, the University of Science and Technology Beijing, formulated the Xiao Fa (94) No. 068 Emergency Notice on Strict Administration of Examinations ([hereinafter] referred to as the “No. 068 Notice”). The notice provided that students who cheat on examinations would be treated as withdrawing [from the university] and [their] enrollment status [would be] cancelled. On March 5, 1996, the defendant determined, based on [the Notice], that TIAN Yong’s act was one of cheating and rendered a decision to treat [him] as withdrawing [from the university]. On April 10 of the same year, the defendant completed and issued an enrollment status alteration notice [for TIAN Yong], but did not directly announce and deliver to him its decision to treat [him] as withdrawing [from the university] or the enrollment status alteration notice, nor did it carry out the withdrawal procedure for him. TIAN Yong continued to participate in normal study and activities organized by the education institution in the capacity of a student of the university.

In September 1996, the defendant reissued a student ID card to TIAN Yong. [The defendant] collected education fees paid by TIAN Yong every academic year afterwards, carried out registration for TIAN Yong, issued [him] subsidies [provided] for university students, and arranged for TIAN Yong to participate in the graduation internship and the graduation project [required of] university students. TIAN Yong’s thesis supervisor received the graduation project completion fund issued by the education institution. TIAN Yong even participated in examinations as a student of the university and received, in turn, the College English Band 4 [qualification] 7 and a certificate of passing in the computer applications BASIC language proficiency test. The defendant did not dispute the fact that plaintiff [TIAN Yong] passed all of the [courses required] during his four-year study at the university and completed [his] graduation internship, graduation project, and thesis oral defense, in addition to receiving an “excellent” 4 Translators’ note: the term “补考” as used here may refer to a makeup examination or a supplementary examination. The former suggests that TIAN Yong could not take the regular examination because of a time conflict or other extenuating circumstances, whereas the latter suggests that TIAN Yong did not pass the regular examination and was given another chance to pass the examination. It is not clear from the context which type of examination this term refers to. 5 Translators’ note: the term “纸条” (“note”) may refer to a note or notes. 6 Translators’ note: the term “厕所” (“toilet”), instead of “洗手间” (“restroom”), is used here. 7 Translators’ note: the term “大学英语四级” (“College English Band 4”) likely refers to “全国大学英语四级考试” (the “National College English Test Band 4”). The National College English Test is a standardized examination designed to ensure that undergraduate students in China meet the required English levels as specified in the syllabus of the National College English Teaching (“CET”). The National CET consists of three tests: the Band 4 (CET-4) test, the Band 6 (CET-6) test, and the CET-Spoken English Test. Typically, a Chinese undergraduate student needs to pass the CET-4 test in order to graduate with a bachelor's degree. For details, see http://www.cet.edu.cn/cet_concept4.htm#.

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[recognition] for his graduation thesis and a graduation total score [that placed him] ninth in [his] class.

In June 1998, when the school at which TIAN Yong was [studying] sent to the defendant [the set of] conferral of bachelor’s degree forms for TIAN Yong’s class, the relevant department of the defendant refused to award TIAN Yong a graduation certificate on the grounds that he had already been treated as withdrawing [from the university] and did not have enrollment status at the University of Science and Technology Beijing. Further, [the defendant] did not send TIAN Yong’s graduation assignment eligibility form8 to the educational administration department.

[The details regarding the above paragraph were presented as follows:] The school at which TIAN Yong was [studying] found that he had met the requirements for graduation from the university and for the conferral of a bachelor’s degree. However, because, at that time, plaintiff [TIAN Yong] was in negotiation with the education institution regarding graduation issues, [the school] had not signed the conferral of bachelor’s degree form [for him], but rather had been waiting until the issue of his enrollment status was resolved to sign it. As a result, the defendant did not include plaintiff [TIAN Yong] in the conferral of bachelor’s degree eligibility list that was delivered to the Degree Evaluation Committee of the institution for examination. Because some of the defendant’s teachers petitioned the former State Education Commission regarding the TIAN Yong matter, the Department of College Student Affairs of the State Education Commission sent a letter to the defendant on May 18, 1998, opining that the defendant’s handling of TIAN Yong’s violation of examination room disciplinary [rules] was excessive and suggesting that [the defendant] review [the matter]. On June 10 of the same year, the defendant reviewed [the matter], [but] adhered to its original conclusion. TIAN Yong believed that he met the statutory requirements of a university graduate, and that the refusal of the University of Science and Technology Beijing to award a graduation certificate and a degree certificate to him was illegal. [He], therefore, initiated administrative litigation at the Haidian District People’s Court of Beijing Municipality.

Results of the Adjudication

On February 14, 1999, the Haidian District People’s Court of Beijing Municipality rendered the (1998) Hai Xing Chu Zi No. 00142 Administrative Judgment:

1. [The court orders] the University of Science and Technology Beijing to award a graduation certificate [certifying the plaintiff’s] graduation from its undergraduate program to TIAN Yong within 30 days of the judgment’s coming into effect.9

8 Translators’ note: the term “毕业派遣资格表” (“graduation assignment eligibility form”) reflects China’s former practice of assigning graduates to different posts. In contemporary China, graduates have more flexibility to pursue their careers. Now, “assignment eligibility” is generally understood as “eligibility for accepting employment”. 9 Translators’ note: the original text reads “判决生效” (“the judgment comes into effect”). According to Article 85 of the Administrative Litigation Law of the People’s Republic of China, if a party is dissatisfied with the first-instance judgment, that party has the right to appeal to the appropriate higher court within 15 days of the judgment’s being served. If the case is not appealed within the prescribed time limit, the judgment will come into legal effect. See《中华人民共和国行政诉讼法》(Administrative Litigation Law of the People’s Republic of

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2. [The court orders] the University of Science and Technology Beijing to organize its

relevant schools and departments and its Degree Evaluation Committee to review TIAN Yong’s eligibility for the [conferral of] a bachelor’s degree within 60 days of the judgment’s coming into effect.

3. [The court orders] the University of Science and Technology Beijing to perform its

responsibility of reporting the procedure related to TIAN Yong’s graduation assignment to the local department of educational administration within 30 days of the judgment’s coming into effect.

4. [The court] rejects TIAN Yong’s other litigation requests.

The University of Science and Technology Beijing appealed. On April 26, 1999, the No. 1 Intermediate People’s Court of Beijing Municipality rendered the (1999) Yi Zhong Xing Zhong Zi No. 73 Administrative Judgment: [the court] rejects the appeal and upholds the original judgment.

Reasons for the Adjudication

In the effective judgment, the court opined:10 According to the laws and regulations of [the People’s Republic of] China, higher education institutions have the authority to manage the enrollment status of persons who receive education [at their institutions] and to give them awards or punishments, and [these institutions] have the responsibility to represent the State in awarding education certificates and degree certificates to persons who receive education [at their institutions]. The relationship between a higher education institution and a person who receives an education [at the institution] is [one of] educational administration management. [Where] a person who receives an education is dissatisfied with a management act of a higher education institution that involves his basic rights, [that person] has the right to initiate administrative litigation, [and the] higher education institution is a qualified defendant in the administrative litigation.

A higher education institution has, in accordance with law, corresponding educational autonomy [in the sense that] it has the authority to formulate institutional disciplinary [rules] and regulations, and, with respect to students enrolled in the institution, [it] has the authority to conduct teaching management and punishment for violations of disciplinary [rules]. However, the institutional disciplinary [rules] and regulations formulated by it and the teaching management and punishment for violations of disciplinary [rules] conducted based on [these rules and regulations] must be in compliance with the provisions of the laws, regulations, and rules [issued by legislative authorities], and must respect and protect the [affected] party’s legal rights and interests. China), passed and issued on Apr. 4, 1989, effective as of Oct. 1, 1990, amended on Nov. 1, 2014, effective as of May 1, 2015, available at http://www.spp.gov.cn/sscx/201502/t20150217_91466.shtml. 10 Translators’ note: the Chinese text does not specify which court opined. Given the context, this should be the No. 1 Intermediate People’s Court of Beijing Municipality.

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The act of the plaintiff in this case of carrying a note with him during the makeup examination was an act that violated examination room disciplinary [rules]. The defendant could handle [the violation] in accordance with relevant laws, regulations, and rules, as well as the institution’s relevant provisions. However, the No. 068 Notice formulated by the institution, which was the basis for the decision rendered by [the defendant] treating the plaintiff as withdrawing from [the institution], was in conflict with the statutory requirements on withdrawal as set forth in Article 29 of the Provisions on the Administration of Students in Regular Higher Education Institutions. Therefore, the defendant’s decision to treat [the plaintiff] as withdrawing from [the institution] was illegal.

The decision to treat the plaintiff as withdrawing [from the institution is one that] implicated his right to education. In order to fully safeguard [the plaintiff’s] rights and interests and [adhere to] the principle of proper procedure, the defendant should have delivered and announced this decision to him, and allowed [him] to put forward a petition opinion. But the defendant neither handled [the matter] in accordance with this principle nor actually completed various procedures for the plaintiff, including the cancellation of [his] enrollment status and the transfer of [his] household registration and records. The factual act11 [carried out by] the defendant in September 1996 of reissuing a student ID card to the plaintiff and registering him [with the institution] should be regarded as the defendant’s alteration of its decision to treat the plaintiff as withdrawing from [the institution] and [the defendant’s] restoration of the plaintiff’s enrollment status. The defendant also arranged for the plaintiff to complete the four-year curriculum, participate in assessments, an internship, and a graduation project, and [allowed him] to pass [his] thesis oral defense. Although the aforementioned series of acts was specifically implemented by some teachers of the defendant and its related schools and departments, because all of these [acts] were [within its teachers’] job duties, the defendant should [still] bear the legal consequences that resulted from the aforementioned acts.

The State implements a system of education certificates. As a higher education institution established with the State’s approval, the defendant should, with respect to a person who obtains enrollment status at a regular higher education institution, receives formal education, reaches a certain level [of achievement], and completes all requirements by the end of [this] study, award him a corresponding proof of study to recognize that the student has reached this certain educational [achievement]. The plaintiff met the aforementioned requirements [expected] of a higher education institution graduate. [Therefore,] the defendant should, in accordance with Article 28, Paragraph 1, Item 5 of the Education Law of the People’s Republic of China and Article 35 of the Provisions on the Administration of Students in Regular Higher Education

11 Translators’ note: the Chinese text reads “事实行为” (“factual act”). In China’s administrative law, a “factual administrative act” (“行政事实行为”) and an “administrative act in law” (“行政法律行为”) are two different types of administrative act. A factual administrative act has no legal effect, but could affect a person’s rights and duties. Factual administrative acts include, among other acts, informal administrative acts and administrative acts that violate the law. See, e.g., 王红建 (WANG Hongjian), 行政事实行为概念考 (On the Concept of Factual Administrative Act), 《 河 北 法 学 》 (HEBEI LAW SCIENCE), Issue No. 7 (2009), available at http://journal.chinalawinfo.com/Article_Info.asp?Id=133544.

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Institutions, have awarded the plaintiff a graduation certificate for university undergraduates.

The State implements a degree system, [and] a degree certificate is a measure to evaluate an individual’s academic level. As an institution authorized by the State to confer bachelor’s degrees, the defendant should, in accordance with statutory procedures, confer corresponding degrees and award degree certificates to students who have reached a certain academic level or professional skill level. According to the statutory procedural requirements for awarding bachelor’s degree certificates, as provided in Article 4, Article 5, and Article 18, Item 3 of the Interim Implementing Measures of the Regulation of the People’s Republic of China on Degrees, the defendant should have first organized [its] relevant schools and departments to review the plaintiff’s graduation results and graduation appraisal materials, etc., to confirm whether the plaintiff had achieved relative mastery of the fundamental theory, professional knowledge, and basic skills of [his] discipline, and whether [he] possessed the preliminary ability to engage in scientific research or undertake specialized technical work. Then, [the defendant should have] decided whether to nominate [the plaintiff] to the Degree Evaluation Committee to be included in the list of recipients of bachelor’s degrees. Only after [the plaintiff] passed the Degree Evaluation Committee’s review of the list could the defendant confer a bachelor’s degree to the plaintiff.