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The Legal Guarantee of the Right to Education Perspective of Completing the Building a Moderately Prosperous Society in All Respects
March 02,2021   By:CSHRS
The Legal Guarantee of the Right to Education Perspective of Completing the Building a Moderately Prosperous Society in All Respects
 
TENG Rui*
 
Abstract: As we review the process of building a moderately prosperous society in all aspects, the rule of law through the right to education, which has played a leading and guaranteeing role in this process, has not only made great achievements, but also set the direction and path for the development of the education system and unleashed education’s momentum in driving social development. The rule of law through the right to education has been established and developed during the great practice of reform and opening-up. After we achieve the goal of realizing all-round moderate prosperity, it is necessary to straighten out the internal mechanisms concerning its next-step development and codify educational laws in order to further promote human rights progress in China.
 
Keywords: completing the building of a moderately prosperous society in all respects    the right to education    the rule of law through the right to education    human rights    codification
 
2020 is the last year of China’s efforts to complete the building of a moderately prosperous society in all aspects. In a review of the historical process of this great campaign, the rule of law in education has played an important role. Equity and justice are the inherent requirements of a moderately prosperous society in all aspects. Education is the foundation of national development, equality of education is a key part of social equity with the equal right to education being its core, and protecting citizens’ right to education is the historical mission of the development of education in the new era. The rule of law guarantees the right to education, and the rule of law through the right to education is conducive to the shift from simply formulating laws governing the right to education to earnestly implementing them, thus raising the level of human rights protection.
 
Endowed by the Constitution, the right to education is both a liberal right and a social right.  It is also a basic human right established in a series of international legal documents, including the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights, and Convention on the Rights of the Child, taking an important position in the human rights system. Guaranteeing the right to education is good for realizing educational equity and promoting all-round human development and comprehensive social progress. Standing at a historical juncture on the way toward achieving the “Two Centenary Goals”, we, on the basis of deeply understanding the mission of completing the building of a moderately prosperous society in all respects, must summarize the significant role of the rule of law through the right to education and systematically apprehend how it promotes the mission as well as its future development trend. By doing that, we will continuously advance and refine the rule of law in education and promote human rights in China. 
 
I. Achievements in the Rule of Law through the Right to Education in the Process of Building a Moderately Prosperous Society in All Respects
 
The rule of law in education has largely promoted educational modernization in China and has laid a solid foundation for building a moderately prosperous society in all aspects. The realization of the right to education is not only the precondition for personal survival and development, but also a sign of national strength and social civilization. The rule of law through the right to education holds the key to developing the rule of law in education, and it makes the guarantee of the equal right to education an element present throughout such links as scientific legislation, rigorous execution, just judicature, and compliance with the law by all. As China evolves from building a moderately prosperous society to completing the building of such a society in all aspects, it has made remarkable achievements in the rule of law through the right to education.
 
A. Continuously perfecting the legal system to guarantee the right to education
 
A well-developed legal system is the basis for realizing the rule of law through the right to education. China has continuously perfected legislation in the educational sector and has basically established a multi-faceted and multi-layered system of educational laws.  The legal system to guarantee the right to education has the Constitution at the core, Education Law as the basis, Compulsory Education Law and Higher Education Law as the backbone, and administrative regulations and statutes of various levels as the framework, accompanied by judicial interpretations. Article 46 of the Constitution confirms and guarantees the right to education by providing that “Citizens of the People’s Republic of China have the duty as well as the right to receive education.” Although the academic circle has different views on the nature of the right to education due to its diversity and complexity, it generally recognizes its traits as a liberal right and a social right. The right to education is a basic human right that is vital for people’s comprehensive and free development. The country and the government are obligated to guarantee it. The National People’s Congress and its standing committee have formulated eight basic laws concerning education, including the Education Law aimed to ensure educational development across the board, and the Compulsory Education Law, Higher Education Law, Regulations on Academic Degrees, Vocational Education Law, Non-state Education Promotion Law, Teachers Law, and Law on the Standard Spoken and Written Chinese Language, which focus on education of different stages and types.
 
There are also 18 administrative regulations on education enacted by the State Council, including the Regulation on School Bus Safety Management aimed at ensuring students’ personal safety, and the Regulation on the Education of the Disabled that guarantees the educational rights and interests of the disabled. The Ministry of Education and its predecessor the National Education Commission have formulated 72 educational statutes successively,  including the latest Rules on Food Safety, Nutrition and Health Management in Schools developed by the Ministry of Education in conjunction with the State Administration for Market Regulation and National Health Commission, which came into force in April 2019, to further strengthen the food safety risk prevention and control system in schools.  The Supreme People’s Court and Supreme People’s Procuratorate have jointly released judicial interpretations about criminal exam cases in recent years to better ensure the citizens’ right to education. In November 2015, the Supplementary Provisions VI on the Determination of Crime Names in the Enforcement of the Criminal Law of the People’s Republic of China was promulgated, which added crimes such as organized exam cheating, illegal sales and provision of exam questions and answers, and taking an exam in place of others. The Interpretations on Several Issues Concerning the Applicable Law for Handling Criminal Cases Such as Organized Exam Cheating issued in September 2019 specified four types of exam cheating, including in the gaokao, as crimes, and provided conviction and sentencing standards. 
 
B. Gradually enhancing the capability of law-based governance of education
 
Promoting the law-based administration of government, pushing the government to change its functions and putting educational management on the track of the rule of law is a key part of the rule of law through the right to education. As China is striving to build a moderately prosperous society in all aspects, the country has implemented the Implementation Outline for Building a Law-based Government (2015-2020) to legalize government duties, perfect the procedures for making significant administrative decisions, and strictly regulate administrative enforcement of the law in education. It has also earnestly implemented the Opinions of the Ministry of Education on Strengthening Administrative Enforcement of Law in Education to establish and improve an efficient educational management system featuring clear division of authority and duty and a law enforcement mechanism featuring overall planning, interdepartmental cooperation, and coordination across different levels, so as to make sure major educational decisions are scientific, rational and in compliance with the country’s laws and regulations.
 
In strengthening the administrative enforcement of law in education, we have clarified the boundary for the power of the education administration and restricted the exercise of such power under law. Laws are in place for the education administration to follow in their managerial behaviors, and the capability and level of law-based governance of education has been improved step by step, with a view to advancing the modernization of the governance system for education and guaranteeing citizens’ right to education in accordance with the law.
 
C. Comprehensively improving the educational dispute settlement mechanism
 
Efforts have been made to constantly reinforce the relief for the right to education, improve the educational dispute prevention and handling mechanism, and settle various educational disputes with a law-based approach. A mechanism for resolving educational disputes has been established in which administrative litigation and reconsideration is the main approach, assisted by administrative mediation. The legal service system has been perfected to effectively intensify judicial guarantee and let teachers and students feel fairness and justice in judicial cases. Administrative reconsiderations are handled with a higher efficiency and quality while the supervisory role is brought into better play to better protect citizens’ right to education. At the same time, more efforts are being made to interpret the law through cases, so as to further regulate the administrative behaviors of educational authorities and prevent and resolve legal disputes at source. In 2019, the Ministry of Education handled 395 administrative reconsiderations and 57 adminsitrative litigations (29 first instances and 28 second instances) in accordance with the law.  The settlement of educational disputes is becoming increasingly standardized and law-based. 
 
The Opinions on Improving the Accident Handling Mechanism and Maintaining Teaching Order in Schools issued by five administrative departments including the Ministry of Education has put in place standard procedures for handling accidents in schools. A range of compensation mechanisms are also provided regarding damages for accidents, and liabilities for such accidents are determined according to law, so as to protect students’ lives and safety. 
 
D. Deeply popularizing the concept of the rule of law
 
Measures have been taken to create a favorable social environment for the rule of law through the right to education. China has worked hard to raise awareness of the law, enhance legal competence and rule-of-law level in the education system, and stepped up legal awareness among teachers by incorporating it in the whole process of teachers’ education, admission, training and management and deepening their training on the Constitution and relevant laws.
 
Publicity and education on the law among youths has been continuously strengthened, for which legal education and practice bases and classrooms have been built. The study, publicity and education of the Constitution has been carried out among youths to spread the constitutional spirit and knowledge, and consolidate the societal basis for guaranteeing the rule of law through the right to education. In 2019, people studied the Constitution on http://qspfw.moe.gov.cn/index.html, the national law popularization website launched by the Ministry of Education, 4.26 billion times, and 47.86 million “Constitution guardians” were selected. 
 
II. Role of the Rule of Law through the Right to Education in Building a Moderately Prosperous Society in All Aspects
 
Strongly promoting educational equality is not only our responsibility in developing education in the new era, but also an inherent requirement of building a moderately prosperous society in all aspects, which explains why it is written in the report of the 18th CPC National Congress. The equal right to education is the core of educational equity and the purpose of the rule of law in modern education. Only when a citizens’ right to education is fully guaranteed can we effectively protect educational equity, enhance the public trust in education, promote social equality and justice in the real sense, and raise the level of the “five-sphere” integrated development, thus reaching the goal of all-round moderate prosperity. 
 
From 1979 when China proposed the concept of a moderately prosperous society to 2020 when it comes to the critical stage of realizing such a society in all aspects, the country has continuously stepped up the efforts for the rule of law, and promoted educational progress with law-based thinking and approaches, elevating the rule of law in education across the board. As a result, a legal system guaranteeing the right to education has basically been formed that is founded on the education laws and features sound legislation, scientific governance, right relief and law compliance by citizens. This has given a strong push to modernizing the education governance capability and unleashed education’s driving force for social development. The rule of law through the right to education fully respects the development laws of the education cause. Relying on the regulatory and social functions of laws and regulations, it has played a leading and guaranteeing role in building all-round moderate prosperity. 
 
A. Leading role of the rule of law through the right to education in building a moderately prosperous society in all aspects
 
As Marx and Engels said, a certain individual conducting productive activities in a certain way will have certain social and political relations.  The rule of law through the right to education represents a structured and standard system of social and political relations. The education laws have been developed from scratch through continuous improvements, and the laws concerning the right to education have evolved from paper to practice — this process in itself can maintain social equity and stability, regulate the educational choices of members of society, strengthen public confidence, and protect people’ interests. Therefore, what kind of pattern a society chooses regarding the rule of law through the right to education and what arrangements it adheres to in that regard is an issue of great significance that concerns the country’s overall development, national prosperity, and social development and stability. 
 
The rule of law through the right to education is the basic principle underlying educational reform in China. It points out the direction and path of our educational modernization and plays a leading role in our efforts to build a moderately prosperous society in all aspects. The phrase “in all aspects” means the campaign should cover all sectors, all the population, in all areas. The rule of law through the right to education respects the internal laws and external requirements concerning educational development, emphasizes its comprehensiveness and public nature, and largely enhances the guarantee of the right to education. Guided by a crop of basic education laws and relevant regulations and statutes, such as the Constitution, Education Law, Compulsory Education Law and Higher Education Law, China has insisted on developing inclusive pre-school education, balanced development of nine-year compulsory education, and strongly popularizing high-school education. It has also given more autonomy to colleges and universities, boosted the development of higher education, promoted modern vocational education and continued education, and improved the lifetime education system, so as to create more opportunities for lifetime study and promote educational equity.
 
The rule of law in education is closely linked with the country’s general development plan, and the rule of law through the right to education is incorporated throughout the country’s development, the nation’s rejuvenation and the master plan. The fifth session of the 18th CPC Central Committee in 2015 adopted the Suggestions of the CPC Central Committee on Formulating the 13th Five-year Plan for National Economic and Social Development (hereinafter referred to as the Suggestions), and the fourth session of the 12th National People’s Congress (NPC) in 2016 adopted the Outline of the 13th Five-year Plan for National Economic and Social Development (hereinafter referred to as the Outline). They set down the medium-and-long-term guiding thought, goals and directions for China’s development in economy, culture, society and other aspects, and initiated the five development concepts of “innovation, coordination, greenness, openness and sharing” to make sure the goal of building a moderately prosperous society in all respects can be achieved. Noting that ensuring and improving people’s livelihoods is the starting point and purpose of all work, the two documents demanded that in the educational sector, more public resources be channeled to the grassroots level, to the countryside, and to the disadvantaged groups. In this way, the fruits of educational reform could benefit the majority of people more equitably and citizens’ right to education could be better protected.
 
The educational reform and development in China has got on the track of modernization through the rule of law through the right to education. By insisting on inclusive and public education and leading the development of education with the new concept of “innovative, coordinated, green, open and shared development”, we have raised the penetration rate of education by a large margin, citizens are much better educated, and their right to education is greatly improved. As of 2019, the gross enrollment rate of pre-school education nationwide was 83.4%, net enrollment rate of school-age pupils was 99.94%, and gross enrollment rate of junior high schools was 102.6%, with the retention rate of nine-year compulsory education reaching 94.8%. Senior high school education was basically popularized with a gross enrollment rate of 89.5%, while higher education was about to be popularized with a gross college enrollment rate of 51.6%. In 2019, regular colleges and junior colleges across the country admitted 9,149,000 freshmen, driving the total number of college students to 40,020,000. A modern vocational education and continued education system has been established. In 2019, there were 10,100 secondary vocational schools in the country that enrolled 6,003,700 freshmen and had 15,764,700 students on campus. The special education system has been improved gradually, with 2,192 special schools in 2019 that enrolled 144,200 special students of various types and had 794,600 students on campus.  
 
B. The guaranteeing role of the rule of law through the right to education in building a moderately prosperous society in all respects
 
The report of the 19th CPC National Congress states that the principal contradiction facing Chinese society now is between unbalanced and inadequate development and the people’s ever-growing needs for a better life. Despite China’s remarkable achievements, its development in economic, political, cultural, social and ecological sectors is unbalanced, with huge regional and urban-rural differences. General Secretary Xi Jinping stressed that the most difficult and onerous task in building a moderately prosperous society in all respects lies in the rural areas, especially poor areas. How to promote educational equity, rationally allocate educational resources, and realize inclusive education in urban and rural areas and different regions alike is a major challenge. In building the rule of law through the right to education, the top priority is better protecting the disadvantaged groups’ right to education. In response to the call for the modernization of education, the rule of law through the right to education emphasizes balance in educational development and has upgraded the protection of people’s right to education from the “quantitative” dimension to the “qualitative” dimension. It advances lean educational management, innovates the institutional arrangement, and refines the systems and mechanisms vital for promoting the balanced development of education, playing a positive guaranteeing role in building a moderately prosperous society in all respects. Thanks to it, there is both an institutional guarantee and financial support to realize educational equity, which will promote social equity and justice, and let all people share in the fruits of educational reform and development.
 
The rule of law through the right to education has pushed the formulation and implementation of national educationa plans. Aiming to promote educational equity and narrow regional disparity in education, China has comprehensively designed the priorities and phased tasks of educational development to ensure the achievement of all-round moderate prosperity in the educational sector. The Outline of the Medium-to-long-term Plan for Educational Reform and Development in China (2010-2020) was issued in 2010, which claimed that the fundamental measure to promote educational equity is allocating more educational resources to rural, remote, poor and ethnic regions.  The State Council issued the Outline of Child Development in China (2011-2020) in 2011 and the National Plan for Child Development in Poor Areas (2014-2020) in 2014 to better the relief and protection mechanism for left-behind children and children in need. Six departments — the Ministry of Education, National Development and Reform Commission, Ministry of Civil Affairs, Ministry of Finance, Ministry of Human Resources and Social Security, and State Council Leading Group Office of Poverty Alleviation and Development — jointly issued the 13th Five-year Plan for Poverty Alleviation through Education in 2016. Vowing to “not let a single student drop out of school because of family poverty,” the plan proposed to prioritize impoverished regions and population when allocating the existing capital, so as to ensure the development of the education system in poor regions and guarantee access to education for children from poor families. The 13th Five-year Plan for the Development of Education issued by the State Council in 2017 stressed “targeted poverty alleviation. More support should be given to students from families with financial difficulties in central and western China, especially remote and impoverished areas.” 
 
The rule of law through the right to education has prompted the creation of the education aid system for impoverished groups, improved the regional allocation of educational resources, and continuously perfected the national student aid system. It has promoted balanced development of the education system through practical institutions and made sure that a moderately prosperous society in all respects benefits all groups at the right age for education. To genuinely guarantee the equal right to education for all people, especially vulnerable groups, China has established a student aid policy system with Chinese characteristics that combines inclusive policies with special-case policies. Fully covering all stages of education from pre-school to postgraduate, public and private schools, and students from poor families, the system basically makes sure that not a single student drops out of school because of family poverty and drives home the concept of educational equity.  The education aid system for pre-school children has enabled children in financially strained families to go to kindergarten, while the free compulsory education system has made sure all school-age children and adolescents from poor families can go to school. The differentiated aid for senior high school students helps children from low-income families finish high school and stand on their own feet, while the diverse aid in the higher education stage frees impoverished students of their financial concerns before and after they go to college. The integrated enrollment, aid and employment policies targeting vocational college and regular college graduates from poor regions have had notable effects in poverty relief.  During the 13th five-year period, central finance allocated a cumulative aid fund of RMB749.5 billion, with the annual average growth of 5.97%, and about 90% of that was consistently spent on rural areas and over 80% on the central and western regions. Every year about 154 million students nationwide are exempt from tuition and fees with free textbooks, about 25 million students from financially difficult families receive living allowances, and about 14 million children who follow their migrant worker parents to cities are entitled to a base quota of average public fund, free textbooks, exemption from miscellaneous fees, and living allowance for boarding students wherever they go. The better nutrition program has benefited about 32 million students in poor areas. 
 
The rule of law through the right to education has pushed the country to pay more attention to the education of ethnic minorities and better guarantee their right to education, so as to cement the awareness of ethnic community and make sure all ethnic groups are covered by a moderately prosperous society in all respects. Various types of ethnic schools of various levels have been built, preparatory courses and ethnic classes have been held in the mainland, favorable policies have been rolled out for students of ethnic minorities to enter higher-level schools, and boarding schools are built in agricultural and pastoral areas to ensure the right of ethnic minorities to education. In 2020, there were 34,667,000 ethnic minority students across the country, accounting for 11.1% of the total;  there are 32 ethnic institutions of higher education with 4,327,300 ethnic minority students in college or junior college, accounting for 8.9% of all students in college or junior college.  Nine-year compulsory education from primary school to junior high school has been fully popularized in ethnic regions, and 15-year free education from pre-school to senior high school is provided in the Tibet autonomous region and the southern part of the Xinjiang Uygur autonomous region.  
 
In building a moderately prosperous society in all aspects, we need to develop “education that the people are satisfied with.” The educational reform in China has generally lengthened the years of education for the people, perceptibly increased their level of education, obviously improved the quality of basic education in poor areas, and further narrowed the educational gap between regions, basically ensuring education for all eligible groups. Meanwhile, new heights have been scaled in educational development, input in education and scientific research has yielded plenty of results, and the cultivation of innovative talents is of a higher quality, which, while ensuring people’s right to education, have also provided a new economic driver through sci-tech innovation and protected Chinese people’s right to development.  China has primarily established a learning-oriented society, where the main framework of a new educational system has basically been erected and we have entered the stage of “full-swing construction and interior decoration.” With the rising international influence of Chinese education, we have forged cooperative relations with nearly 190 countries and regions and signed academic degree and diploma mutual acceptance agreements with 50 countries and regions.  All these achievements are evidences of the leading and guaranteeing role played by the rule of law through the right to education in building a moderately prosperous society in all respects. Such a society has been built with high quality on schedule because the rule of law through the right to education has played a critical role from the very beginning. It has also promoted educational equity and justice and laid a solid foundation for human rights protection, serving as the primary engine of China’s educational modernization. 
 
III. Mechanism of the Rule of Law through the Right to Education in an All-round Moderately Prosperous Society 
 
Completing the building of a moderately prosperous society in all respects is a crucial arrangement for achieving the “Two Centenary Goals” and the Chinese nation’s great rejuvenation. As Engels said, socialist society is not something unchanged — it, like any other social system, must be deemed as a society that’s constantly changed and reformed.  Why is it that the socialist modernization with Chinese characteristics has been forging ahead steadily? Why is it that the goal of building a moderately prosperous society in all respects has been met on schedule? It is because institutional reform in China has injected strong vitality into social development. Reform is always on the way; there is no end to it — it’s the same for the rule of law through the right to education. The various social systems and political systems are not the end. They are the organs of social life, whose merit or demerit must be determined based on the spirit they convey.  The rule of law through the right to education has been established and improved through the great practice of reform and opening-up. It is an important content and great outcome of reform and opening-up and of building a moderately prosperous society in all respects, and it also provides vital guarantees and support for the two grand causes. Therefore, to consolidate the remarkable achievements in building all-round moderate prosperity, we must straighten out the internal mechanisms concerning the next-step development of the rule of law through the right to education.
 
A. Stay problem-oriented and goal-oriented
 
Building a moderately prosperous society is a process of constantly resolving development issues and meeting development goals with systems, during which the rule of law through the right to education has made great contributions. The problem-oriented development of the rule of law through the right to education is aimed at resolving the multiple issues in the education sector in the process of pursuing all-round moderate prosperity, so as to lead the modernization of education through problem solving. The goal-oriented development is intended to figure out the society’s educational needs according to the goal of building a moderately prosperous society. An important reason why we have achieved so much in building such a society is that the rule of law through the right to education has stayed problem-oriented and goal-oriented at the same time. It has played a major role in helping resolve all kinds of problems and difficulties as we press ahead along the right direction and path to fulfill the tasks toward our beautiful aspirations.
 
Staying problem-oriented in the rule of law through the right to education as we build a moderately prosperous society in all respects, we can focus on the theoretical and practical issues in that regard and concentrate manpower and resources on tackling tough issues in the education sector. As China moves forward with socialist modernization with Chinese characteristics, social development usually poses new questions and new requirements on the rule of law through the right to education and promotes reform in depth, which in turn promotes social development. Staying goal-oriented, we will translate the vision of all-round moderate prosperity into concrete reforms for the rule of law through the right to education, so as to deepen the reform of the education system and clear the obstacles in the education systems and mechanisms, and keep unlocking the vitality and momentum of social development. From the “Chinese-style Four Modernizations” to “building a moderately prosperous society in all respects”, to “pursuing moderate prosperity on a higher level” and to “completing the building of a moderately prosperous society in all respects” — different stages of social development call for corresponding development goals, including the development of the rule of law in education. Corresponding to the aforementioned goals in each development stage, the rule of law through the right to education has emerged, developed and improved alongside the process of reform and opening-up. From 1980 when the Regulations on Academic Degrees was enacted to 2016 when the Non-state Education Promotion Law was last revised, laws concerning the right to education were promulgated, revised and abolished numerous times. Equal importance should be attached to the abolishment, revision, promulgation and interpretation, and laws, regulations and statutes must be sorted out and well planned. The pace and priorities of educational legislation dovetail with the requirements and progress of educational system reform as well as with the requirement for achieving all-round moderate prosperity. 
 
Similarly, to consolidate the remarkable achievements in building a moderately prosperous society in all respects, we need to stay problem-oriented and goal-oriented during the future reforms of the rule of law through the right to education, as illustrated by the ongoing legislation on pre-school education. As the fastest-growing educational segment in the new era, pre-school education has experienced historical growth. According to the 2019 National Statistical Bulletin on Educational Development issued by the Ministry of Education, there were 255,000 kindergartens across the country in 2019, with 46 million children in the three pre-school grades, indicating a gross enrollment rate of 83.4%. We have met and surpassed in advance the goal of “70% gross enrollment rate in the three-year pre-school period by 2020” set in the Outline of the Medium-to-long-term Plan for Educational Reform and Development in China (2010-2020),  and has surpassed the average level of 73.7% in the world’s medium-to-high-income countries. However, despite the rapid progress, pre-school education remains a short link in the livelihood work of China’s educational sector. With inadequate and unbalanced development being prominent, pre-school education is a weak link in the national education system and faces historical challenges on many fronts, such as inclusive resources, funding, faculty and administrative regulation. The public has long expected legislation for pre-school education. Sound laws and regulations can create a favorable environment for the healthy and standard development of pre-school education. The ongoing legislation is aimed to provide the basis and guarantee for resolving its problems in teaching quality, team building, resource provision, and supervision.  To have the forthcoming Pre-school Education Law play an important role in building a moderately prosperous society in all respects, the whole legislative process has stayed problem-oriented and goal-oriented, in order to promote the orderly and standard development of pre-school education. The new law is expected to better meet the public’s expectations for quality pre-school education by replacing the phenomenon of “difficult access, expensive kindergarten” with “easy access, good kindergarten”. 
 
B. Strengthen top-level design and accurate design in parallel
 
The great achievements in building a moderately prosperous society in all respects are ascribed to the rational application of institutional reform methods. Combining top-level design with accurate design is a reform method and logic that carries Chinese characteristics and fits China’s national conditions.  Top-level design is the epistemology and methodology of institutional reform and innovation. It emphasizes the blueprint of institutional design, the plan for innovation and the steps of reform, and attaches great importance to keeping the institutional reform systematic, holistic and comprehensive.  Accurate design is also the epistemology and methodology of institutional reform and innovation, but it stresses the details of institutional design, the implementation of innovation, and the execution of reform, with a special emphasis on the accuracy and details of institutional reform. The unity of top-level design and accurate design also plays an important role in reforming the rule of law through the right to education as we strive to build a moderately prosperous society in all respects.
 
Strengthening both top-level design and accurate design is the scientific methodology for building all-round moderate prosperity and the fundamental epistemology and methodology for creating and developing the rule of law through the right to education with Chinese characteristics. Strengthening top-level design and strengthening accurate design are in dialectical unity. To strengthen the top-level design for the rule of law through the right to education, the local, phased accurate reform is the basis, which in turn is preconditioned on the top-level design. By integrating top-level design and accurate design, we not only attach importance to the overarching and strategic macro-structure of the rule of law through the right to education as well as the overall planning for educational legislation, but also pay close attention to the much-needed promulgation, revision and abolishment of education laws. That is the only way to establish the system of the rule of law through the right to education that fits China’s national conditions and to ensure the accomplishment of all-round moderate prosperity. On the one hand, achieving a moderately prosperous society in all respects is the outcome of the state’s and the government’s efforts to promote institutional reform, including the rule of law through the right to education, by intensifying top-level design. Bearing in mind the big picture, the state and the government have designed the economic, political, cultural, social and ecological systems in a holistic way, and strengthened the study and judgment of the correlation among various institutional reforms, in a bid to promote social development. The advancement in those areas is closely linked with the rule of law through the right to education. On the other hand, achieving a moderately prosperous society in all respects is partly attributed to the insistence on accurate design. Historical materialism holds that the people are the real creators of history and the real driving force of historical progress. Building a moderately prosperous society in all respects and a great modern socialist country is a realistic struggle and a grand strategy spanning centuries. It couldn’t have been achieved without the accurate design of details, and the accurate design of the rule of law through the right to education has guaranteed the implementation of sound laws and good governance related to education across the society. Legislation is the foundation for the rule of law, and good laws are the precondition for good governance. As a key component of the socialist legal system with Chinese characteristics, education laws and regulations make an important supplement to national legislation. Making educational legislation more accurate and detailed is an important means to the end of sound laws and good governance, and an imperative requirement for realizing law-based state governance across the board. 
 
The central government has put forth a grand plan for the revision and formulation of education laws to further improve the current education law system, an effort that started in 2003. The Outline of the Medium-to-long-term Plan for Educational Reform and Development in China (2010-2020) and the 13th Five-year Plan for Educational Development proposed to formulate five laws and revise six ones.  The Education Law, Higher Education Law, Teachers Law, Non-state Education Promotion Law, Vocational Education Law and Regulations on Academic Degrees will be revised, and laws concerning pre-school education, family education, schools, exams and lifetime study will be formulated. The revision of the Higher Education Law and Non-state Education Promotion Law has been completed, that of the Eduation Law and Vocational Education Law is under way, and surveys are being conducted for the revision of the Regulations on Academic Degrees and Teachers Law. The Pre-school Education Law aimed to regulate pre-school education, an important part of the national education system, is listed in the legislation plan of the standing committee of the 13th National People’s Congress, and the Draft Pre-school Education Law (for opinions) was released in September 2020 to solicit public opinions. It’s a bit difficult to promote the Exam Law, so we will begin with formulating the Regulations on Education Exams to include special recruitment exams in the statutory scope of national exams. Preparations have also begun for legislation on school and family education. Regarding educational regulations and statutes, China is promoting the revision of the Regulations on the Implementation of the Non-state Education Promotion Law. The Ministry of Education is also drafting the Rules on Educational Punishment by Teachers in Primary and Middle Schools and the Rules on Protection of Minors in Schools, and promoting the implementation of the Provisions on the Administration of Students in Regular Institutions of Higher Education. 
 
It is by fully applying the scientific method of “strengthening both top-level design and accurate design” that we have gradually refined and made major institutional innovations in the rule of law through the right to education. It is an important exploration in the history of the system of educational laws. China’s future explorations and practices in this area should center around the goal of “establishing an educational system serving the lifetime learning of all” and focus on integration, implementation and upgrading. We need to speed up the progress of the rule of law through the right to education, make this system more complete and scientific, and provide the legal assurance for modernizing the system for the governance of education and its capabilities,  in the endeavor to accomplish the goal of building a modern country with strong education.
 
IV. The Development Direction for the Rule of Law through the Right to Education after a Moderately Prosperous Society is Successfully Built
 
The accomplishment of the first centenary goal kicks off the journey to realize the next one. According to the strategic deployments set out by the 19th CPC National Congress, after we complete the building of a moderately prosperous society in all aspects, with a further 15 years of hard work from 2020 to 2035, will see that socialist modernization is basically realized. Then from 2035 to the middle of the 21st century, having basically achieved modernization, we will work hard for another 15 years to develop China into a great modern socialist country that is prosperous, strong, democratic, culturally advanced, harmonious, and beautiful. The fourth plenary session of the 19th CPC Central Committee set the general goal of upholding and perfecting the socialist system with Chinese characteristics and promoting the modernization of the national governance system and its capabilities. The core of this goal is to make the socialist system with Chinese characteristics more mature and developed, and make the national governance system and capabilities fully modernized. Following the historical and theoretical logic of institutional development from maturity to perfection, it’s evident that after we secure a decisive victory in building a moderately prosperous society in all respects, we should work harder to perfect the institutional system and improve its quality and efficiency. We must “improve and develop the socialist system with Chinese characteristics, and provide a more developed, more stable and more useful institutional system for the Party’s and the nation’s undertakings and development, for people’s happiness and well-being, for social harmony and stability, and for the country’s lasting peace and order.”  What’s certain is that the next 30 years will be an important historical period in China’s modernization drive and also in developing the rule of law through the right to education. What kind of a socialist country of strong education we will build depends on how we develop the rule of law through the right to education over the next 30 years. In the meantime, all-round rule of law is the best guarantee for human rights, and human rights are the ultimate value of the rule of law.  Protecting all human rights, including the right to education, is the value pursuit of China’s Constitution as well as various laws, the rule of law through the right to education being no exception.
 
In developing the rule of law through the right to education, the essence is to take the improvement of educational laws and regulations as an opportunity to panoramically scan those laws and regulations in the contemporary Chinese legal system,  promote codification in the educational sector, and ensure a better future for the rule of law through the right to education after we succeed in building a moderately prosperous society in all respects. The Legal Code, as the highest form of written laws, is the outcome of the age of rationalism. American scholar Franklin said, every provision of the law has the reason of existence, and the overall structure of provisions displays the principles of organization.  Leon Duguit, a representative of sociological jurisprudence, said: I believe the law is a de facto and natural outcome rather than the product of a single lawmaker. Written laws and codes can exist completely within their rigid text, but new laws and regulations are always formed under the pressure of facts and actual needs. The texts are there, but they have become powerless and lifeless; or an abstruse interpretation has forced upon the lawmaker meanings and scopes he had not thought of when making the law.  As a matter of fact, the NPC in 2008 called for efforts to “study and put forth a plan for straightening out the existing laws and put it into practice.” This marked the beginning of a new stage in China’s legislation, in which our focus moved from quantity to quality, and it also indicated the “codification” trend of our legislative work. Also that year, an official of the NPC said “the compilation of laws will be put on the agenda after 2010, whereby separate laws enacted in batches will be integrated and compiled into several comprehensive codes.”  This means the codification of sectoral laws has become the direction of future legislation. Codification can be understood from several dimensions —it can mean the process of formal legislation and also the outcome of this process. Compared with legislation in the common sense, codification is usually regarded as a very important or formal approach to legislation.
 
At present, most sectoral laws in China have been codified or are in the process of codification. The Civil Code was adopted at the third session of the 13th NPC on May 28, 2020 and will come into force on January 1, 2021. The formulation and promulgation of the Civil Code, seen as an “encyclopedia of social life,” has set a good example for the codification in the educational sector. The codification of education laws should follow this trend and push the scientific legislation for educational rule of law. The new era has given birth to the mission and opportunity of the codification of education laws, which is good for the in-depth development of the rule of law through the right to education when a moderately prosperous society in all respects is in place. The codification of education laws further proves that China is systematically summarizing its experience in reform and opening-up, and is striving to build a modern law-based society in the real sense through the compilation of laws. The fourth plenary session of the 19th CPC Central Committee set the goal of comprehensive modernization of the national governance system and capability to “further consolidate the socialist system with Chinese characteristics and fully demonstrate its superiority.”  Codification, including that in the educational sector, will facilitate the exertion of our institutional superiority.
 
As the socialist legal system with Chinese characteristics is taking shape, separate educational laws have been enacted gradually. How to make these laws more coordinated and give play to their synergy effect is a point requiring close attention. At present, there are too many educational laws and regulations, and a primary organization through compilation can in a way exert the function of an education law. However, from the perspective of perfecting the education law system and ensuring the independent position of education law, compilation is not the end of efforts. The most fundamental difference between codification and law compilation is whether a standard system is established. Unlike the complication of laws, a systematic codification is consistent both in form and organization, self-sufficient in logic and comprehensive in content.  In this sense, the codification trend of the education laws is self-evident. Making overall considerations for the rule of law through the right to education, we need to move from formulating specific laws in each educational domain to developing an educational code to make educational legislation more systematic. The codification of education laws will be beneficial for improving the educational law system in China, resolve the conflict between the limited legislative resources and the large demand for educational legislation, and reduce the competition/cooperation and conflict among existing laws and regulations.  To develop an Educational Code, it is necessary to systematically compile education-related legal provisions, develop parts and chapters for different topics such as the principles of education, educational systems, domains of education, and entities of education, and revise, integrate and supplement current education laws, so as to form a complete system of educational laws and regulations.  In fact, in China’s current legal system, educational laws and regulations are best positioned for codification. Therefore, while continuing to promote the promulgation, revision and abolishment of education laws, we suggest launching the preliminary surveys and investigations to create the necessary conditions to turn the blueprint for educational codification into reality. As such, we will be able to present a high-level educational code, make the rule of law through the right to education more effectively lead educational modernization, and let it further push China’s human rights progress after we achieve all-round moderate prosperity.
 
(Translated by XIANG Na)

* TENG Rui ( 滕锐 ), Secretary-General of the Institute for Human Rights Law, Deputy Director, Researcher of the Institute for Education Law, Huazhong University of Science and Technology. Doctor of Law. This paper is a phased result of the “Institute for Education Law of the Ministry of Education”, a first-class liberal arts development program (think tank development and social service capability improvement program) of the university, and the “study on the refinement of socialist core values and legal system for education”, a major project of the National Social Science Fund of China (project number: 19VHJ010).
 
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2. Li Lianning, “Review and Prospect of the Rule of Law in Education,” China higher education Research 3(2019).
 
3. Statistics of educational statutes are updated on the basis of the article “40-year Development of the Rule of Law in Education: Achievements, Problems and Prospects” by Ma Huaide, Journal of National Academy of education Administration 10 (2018).
 
4. Ministry of Education, “2019 Annual Work Report on Building a Law-based Government,” accessed September 30, 2020. http://www.moe.gov.cn/jyb_xxgk/s5743/s5744/A02/202004/t20200401_437181.html.
 
5. Ibid.
 
6. Ibid.
 
7. Bureau of Compilation and Translation of Works by Marx, Engels, Lenin and Stalin of the CPC Central Committee, The Complete works of Marx and engels (Vol.1) (Beijing: People’s Publishing House, 2009), 523-524.
 
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15. Ibid.
 
16. The State Council Information Office, “Seeking Happiness for People: 70 Years of Progress on Human Rights in China”, in The human Rights Cause in China Always in Progress — Compilation of China’s human Rights white Papers (2016-2019) (Beijing: China Intercontinental Press, 2020), 271.
 
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30. Wang Xigen, “Sinicization of Marxist Human Rights Theories and Their Development,” Law and Social Development 2 (2019).
 
31. Wang Xigen and Zhou Cuibin, “Legal Analysis of Educational Equity in China and Conception of Its Reform,” Hubei Social Sciences 7 (2010).
 
32. Franklin, “On the Legal Method of the Uniform Commercial Code,” Law and Contemporary Problems 16 (1951): 330. Hawkland, “Uniform Commercial ‘Code’ Methodology,” University of illinois law forum (1962): 291.
 
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