论受教育权的可诉性及其程度

受教育权的可诉性及其程度受到两个层次的理论和实践的深刻影响,一是国际法关于自由权和社会权的划分,二是国内法关于宪法权利和法律权利的区分。受教育权作为宪法权利,在自由权层面及形式平等方面具有直接的法律效力,具有可诉性;但在社会权层面,只有义务教育阶段的入学升学权和免费就学权具有可诉性。受教育权作为法律权利,其可诉性程度大大提高。平等主体之间的受教育权纠纷可由双方提起民事诉讼予以解决;但行政相对人向行政主体提起的行政诉讼则同样受到被侵害的受教育权性质的影响。

Justiciability and Its Extent of Right to Education

Justiciability and its extent of right to education is influenced profoundly by the theories and practice from two aspects.One is classification of liberal rights and social rights in international law,the other is that of constitutional rights and legal rights in domestic law.As a constitutional right,right to education is justiciable in the aspect of liberal rights and formal equality,but only right to school and free education are justiciable in the aspect of social rights.As a legal right,it is more justiciable.The disputes between equal subjects about right to education may be resolved by civil lawsuit.However,the administrative litigation is also influenced by the quality of right to education in which an administrative counterpart sues a subject of administration.