【作者】 刘冬梅；

【导师】 孙霄兵；

【作者基本信息】 西南大学 ， 教育学原理， 2010， 博士

【摘要】 中国正在走向知识和权利的时代,教育权利日渐受到社会的热切关注。教师教学权利作为一项重要的教育权利,基于教育活动而产生,是教师基于特定职业身份所依法享有的自主进行教学活动的权利。随着高等教育体制改革的不断推进,高校收费体制下,教师与学生、学校法律关系日趋复杂,高校教学权利冲突现象日益凸显,高校教师在教学权利行使中遇到了一些纠纷与困惑。那么,高等教育大众化背景下,如何界定高校教师教学权利的性质及权利范围,何以保障高校教师的教学自由,已成为亟待研究的突出问题。本研究从教学权利冲突现象入手,将高校教师教学权利置于教师与学生、教师与学校的法律关系中,综合运用文献法、案例法、调查法、比较法等方法,从教育法学、教育学、法哲学等视角展开系统研究,对高校教师教学权利及其行使进行法理剖析、制度分析和现实分析,提出了自己的观点与建议。从历史形态来看,高校教师的教学权利历经从自然权利到法定权利、非专业权利到专业权利的不同阶段。现代高校教师教学权利是公共性权利和专业性权利的统一体,是一种复合型权利。从法理上讲,教师的教学权利基于教师职业而产生,由法律规范所设定。它包含一系列要素,体现为一种资格、利益、选择、能力等。它是相对性权利,不仅受其自身义务的约束,而且受到相对方权利的制约。高校教师教学权利不是单一的,而是一个权利束,既包括教师“教什么”,也包括教师“怎样教”的权利；既包括普通高校教师的基本教学权利,也包括研究生导师的教学权利。从基本的权利来讲,一般包括教师的授课权利,选编和使用教材的权利,教学内容、教学方法的选择权利,对学生的评价权利,指导学生学习的权利等。从制度层面看,我国《教师法》对教师的基本权利义务作了规定,为高校教师教学权利的行使提供了一定依据。但基于高校教学的特点与规律,高校教师相对于中小学教师而言,教学权利的范围与程度有所不同,需要做出专门规定,以保障高校教师教学权利的充分行使。从现实来看,高校教师教学权利的行使,特别是与相对各方权利的冲突与平衡中,权利边界的明晰至为关键。本文认为,高校教师教学权利主要是在教师与学生、教师与学校的法律关系中得以体现的,基于高校教师教学权利的特性,只要不妨碍学生利益,不妨碍公共利益,不妨碍教学秩序,即可自由行使教学权利。高校教师教学权利具有相对性,不仅受其白身义务的约束,而且受到学生、学校等相对方权利的制约。公立高校教师的教学权利不同于一般公民的个人权利,它具有公共性、专业性和自主性特征。在高等教育大众化进程中,应固守公立高校教师教学权利的公共性,彰显高校教师教学权利的专业性、自主性。而减少外在干预,为教师提供较大教学自主空间,提升教师的主体精神,健全教师教学权利救济途径,是当前高校教学管理中亟待解决的突出问题。高校教师的专业人员身份,决定其享有较大的专业自主权。从很大意义上讲,教师的教学权利实际上是教师在教学领域对相关内容、方法和手段等的自主选择。作为研究高深学问、探求真理的场所,学术自由是大学的灵魂。相对于中小学教师而言,高校教师教学权利的范围更广,更多的体现为一种教学自由。无论是教师教学权利的设定,还是教学权利的行使,均受价值取向的制约。高校教师的教学权利具有公共性和专业性等鲜明特征,教师教学权利是一种特殊的权利,该项权利受益者不只是教师本人,更为重要的是促进学生的发展。教师教学是师生间心灵的契合和精神的沟通,目的在于促进学生人性的完善和人格的发展,学生的自由全面发展则是高校教师教学权利的价值诉求。更多还原

【Abstract】 China is moving toward an era of knowledge and power. Nowadays the educational right has been receiving increasing attentions of the society. As an important part of educational right, the teaching rights of college teachers, stemming from educational activities, are rights that teachers legally enjoy to conduct educational activities independently in their specific identities. In the continuous course of higher education system reform, the legal relations between teachers, students and schools get much more complex under the system of college tuition collection, and teaching rights conflicts become increasingly obvious. Therefore, college teachers have encountered a series of issues and puzzles. How to define the nature and scope of college teachers’teaching rights and how to ensure college teachers’teaching freedom has been the problem which needs further study and resolve under the background of mass higher education. This thesis starts with the conflicts of teaching rights, places college teachers’ teaching rights in the legal relation between teachers and students as well as between teachers and schools, studies the teaching rights comprehensively by means of literature, case, survey, comparison, etc, conducts legal analysis, system analysis and practical analysis in the views of educational law, pedagogy and legal philosophy, and puts forward its own opinions and suggestions.From a historical perspective, college teachers’ teaching rights have gone through several different stages from natural rights to legal rights, from nonprofessional rights to professional rights. Modern teaching rights of college teachers, the unity of public rights and professional rights, are complex rights. From a legal perspective, the teaching rights, which result from the teaching profession and are set by legal norms, include a series of elements and reflect in qualification, interest, choice, ability, etc. They are relative and are restrained by not only their own obligations but also the rights of relative sides. College teachers’teaching rights are not single but a bundle of rights, including not only "what to teach" but also "how to teach", as well as the teaching rights of ordinary teachers and graduate tutors. From a perspective of fundamental rights, the teaching rights mainly include right of teaching, selecting and using teaching materials, choosing teaching contents and methods, evaluating students, guiding students in their learning and development, etc. From an institutional perspective, Teachers Law of the People’s Republic of China states the basic rights and obligations of teachers and provides basis for the exercise of college teachers’ teaching rights. However, with the characteristics and law of college teaching, the extent and degree of college teachers’ teaching rights are different from that of primary and middle school teachers, and thereby special regulation is needed to assure the full exercise of college teachers’ teaching rights. From a realistic perspective, to define the boundary of the teaching rights is particularly critical in the process of exerting the rights, especially in the conflicts and balance with the rights of other relative sides.This article maintains that basing on the characteristics of college teachers’ teaching rights which reflect in the legal relation between teachers and students as well as between teachers and schools, college teachers can freely exercise their teaching rights without prejudice to the interests of students, public interest and teaching order. College teachers’teaching rights are relative and are restrained by their own obligations as well as the rights of relative sides such as students and schools. The teaching rights of public college teachers, which have public nature, professionalism and autonomy, are different from the individual rights of ordinary citizens. In the process of mass higher education, it is a necessity to stick to the public nature of the teaching rights of public college teachers and to highlight the professionalism and autonomy of the rights. Reducing external interference, providing teachers with greater teaching autonomy, raising the subjective spirit of teachers and perfecting the relief ways of teaching rights are the outstanding problems that need to be solved urgently in college teaching and administration.College teachers’professional identity decides that they can enjoy greater professional autonomy. In a larger sense, college teachers’ teaching rights are the independent selections in teaching contents, teaching methods, etc. Academic freedom is the soul of the university, a place for advanced studies of knowledge and the quest for truth. Compared with primary and secondary school teachers, college teachers have a wider range of teaching rights which mainly reflect in teaching freedom.The enactment and exercise of teaching rights are subject to value orientation. College teachers’ teaching rights have distinct characteristics such as publicity and professionalism. Teaching rights, which are special, not only are beneficial to teachers but also improve the development of students. Teaching, aimed at improving students’ human nature and personality, is a union of hearts and a communication of spirits between teachers and students, and free and comprehensive development of students is the value of college teachers’ teaching rights.更多还原