According to Article 60 and Article 62 of the "Regulations on the Management of Students in Ordinary Higher Education Institutions" (2017 Revision), if students have objections to the disciplinary measures taken by universities, they can submit a review to the school's Student Appeal Processing Committee in accordance with the law. If they are not satisfied with the review, they can submit a lawsuit to the education administrative department. If students are not satisfied with the appeal decision of the education administrative department, can they apply for administrative reconsideration or file an administrative lawsuit in accordance with the relevant provisions of the Administrative Reconsideration Law and the Administrative Litigation Law? Can students directly file administrative lawsuits with the people's court in response to disciplinary decisions made by universities? The author combined his practical experience in representing educational administrative litigation cases with reference to judicial decisions to briefly sort them out.

1、 Types of disciplinary actions in universities

Article 51 of the "Regulations on the Management of Students in Ordinary Higher Education Institutions" stipulates that for students who violate laws, regulations, these regulations, and school discipline, the school shall provide criticism and education, and may impose the following disciplinary sanctions depending on the severity of the situation: (1) Warning; （2） Serious warning; （3） Record a demerit; （4） Stay on campus for observation; （5） Dismissal from school. According to the above regulations, disciplinary actions can be divided into two types. One type is disciplinary action that seriously affects students' right to education, that is, disciplinary action that directly loses students' identity, such as expulsion from school; Another type of disciplinary action is one that does not result in a change in student identity, such as warnings, severe warnings, demerits, and probation. In practice, remedies vary depending on the type of disciplinary action.

2、 Remedial Measures for Disciplinary Actions for Losing Student Identity

（1） Students can file an administrative lawsuit against the disciplinary decision of expulsion from a university as the defendant

In the (2021) Jin 03 Xing Zhong No. 6 Gao exam cheating case and (2020) Hu 02 Xing Chu No. 320 KIM MIN JOO exam cheating case, the student refused to accept the school's decision to expel the student, and both filed an administrative lawsuit with the people's court with the school as the defendant. After the people's court accepted the case, the substantive trial was conducted.

In addition, in the notice issued by the General Office of the Supreme People's Court in 2014 (Law Office [2014] No. 17), Article 9 of the "Guidelines for Administrative Trial Handling (1)" stipulates that "if a higher education institution is authorized by laws and regulations to issue academic qualifications, degree certificates, or expel students, and other administrative actions that affect students' right to education, and the parties do not agree to file an administrative lawsuit, the higher education institution shall be the defendant. According to the above guidelines, for administrative actions that affect students' right to education, such as expulsion, the parties involved can directly file an administrative lawsuit with the people's court as the defendant.

（2） Students who do not accept the disciplinary action of being expelled from school may, after review and appeal, file an administrative review or lawsuit regarding the appeal handling decision of the education administrative department

In the (2019) Yue 71xing Chu 421 case, Pan was disciplined by Zhaoqing University for violating the law and constituting a criminal offense during his school years. Pan has successively applied to the Student Appeal Committee for review and filed an appeal with the Guangdong Provincial Department of Education. Later, Pan applied for administrative review with the Guangdong Provincial Department of Education as the respondent, and the review authority made a decision to maintain the review. Pan filed an administrative lawsuit against the Guangdong Provincial Department of Education's appeal handling decision and the Ministry of Education's reconsideration decision. The court accepted and conducted a substantive trial in accordance with the law.

In the (2020) Jing 02 Xing Zhong 334 case, Guo was expelled from school for violating discipline. He refused to accept the appeal handling decision made by the Beijing Municipal Education Commission and filed an administrative lawsuit against the Beijing Municipal Education Commission as the defendant. The court accepted and conducted a substantive trial in accordance with the law.

3、 Remedial Measures for Disciplinary Actions Without Changing Student Identity

（1） Students suing universities as defendants for disciplinary actions such as warnings that do not change their identity are within the scope of university autonomy and not within the jurisdiction of the people's courts

In the (2018) Jing 0108 Xing Chu No. 1055 case, Shen refused to accept the demerit punishment decision made by the School of International Relations and filed an administrative lawsuit with the Haidian District People's Court as the defendant. The court held that Article 29 (1) of the Education Law of the People's Republic of China stipulates that schools and other educational institutions shall exercise the following rights: (4) stipulates that students shall be subject to student status management Implement rewards or punishments. The above regulations belong to the scope of autonomy of universities in running schools and are the internal management behavior of universities towards the educated. Therefore, the decision of a university to impose a demerit recording punishment on students falls within the scope of the autonomy of the university under the aforementioned laws, is an internal management act, not an administrative act, and does not fall within the scope of the people's court's jurisdiction.

In the (2020) Yue 04 Xing Zhong No. 199 case, the student refused to accept the demerit recording punishment imposed by the Hong Kong Baptist University Joint International College of Beijing Normal University and filed an administrative lawsuit against the college as the defendant. The court held that in current judicial practice, the administrative punishment of university education that "is sufficient to change the student's identity and damage their opportunities for education, and will have a practical impact on the student's right to education, It is generally believed to fall within the scope of administrative litigation by the people's court. For disciplinary actions such as warnings, severe warnings, and demerit recording, although they are also educational administrative penalties for universities, such as expulsion from school, However, it is generally believed that "disciplinary actions such as warnings, severe warnings, and demerit recording have not changed the identity of the punished college students, nor deprived them of their qualifications to receive higher education obtained through national unified exams. They belong to the management behavior of the school in providing normal education to students. If students have objections to this, they can be resolved through appeals and other means", which is not within the scope of administrative litigation by the people's court.

（2） There are different opinions in practice on whether students who do not accept disciplinary actions such as warnings and do not change their identity can file administrative reconsideration or litigation against the appeal handling decision of the education administrative department after review and appeal

The first viewpoint holds that the appeal handling decisions made by the education administrative department, whether or not they result in the loss of student identity, are all administrative relief actions and are included in the scope of administrative reconsideration and administrative litigation in accordance with the law.

In the (2020) Jing 02 Xing Zhong No. 496 case, Tao refused to accept the demerit punishment decision made by a medical college in Beijing and applied to the Student Appeal Committee for review and the Beijing Municipal Education Commission for appeal. Later, Tao filed an administrative lawsuit against the Beijing Education Commission regarding the appeal handling decision made by the Commission. The court accepted and conducted a substantive trial in accordance with the law, and ultimately rejected the plaintiff's lawsuit request.

The second viewpoint holds that disciplinary actions that do not result in the loss of student identity should be administratively final, and students should appeal to the education administrative department to resolve the issue. Regarding the appeal handling decision of the education administrative department, it does not fall within the scope of administrative reconsideration or administrative litigation according to law

1. After appealing for disciplinary actions that do not result in a change in student identity, it is not within the jurisdiction of the people's court to file an administrative lawsuit with the education administrative department as the defendant. In the (2022) Hu 03 Xing Zhong 95 case, Chen refused to accept the demerit punishment decision made by a university in Shanghai and applied to the Student Appeal Committee for review and the Shanghai Education Commission for appeal. Later, Chen filed an administrative lawsuit with the Shanghai Education Commission as the defendant regarding the appeal handling decision made by the Shanghai Education Commission. The court believes that disciplinary action given to students by higher education institutions is an act of exercising autonomy by the school and falls within the scope of independent management in accordance with the law. The appeal decision made by the Shanghai Education Commission does not fall within the scope of administrative litigation by the people's court.

2. After appealing for disciplinary actions that do not result in a change in student identity, the education administrative department shall apply for administrative reconsideration on behalf of the respondent, which is not within the scope of administrative reconsideration. In the reconsideration case of Jiao Fu Zi (2023) No. 5, Huang refused to accept the serious warning punishment decision made by Tsinghua University and applied to the Student Appeal Committee for review and the Beijing Municipal Education Commission for appeal. Later, Huang, with the Beijing Municipal Education Commission as the respondent, applied for administrative review of the appeal handling decision made by the Beijing Municipal Education Commission. The review agency believed that disciplinary actions such as warnings, severe warnings, and demerit recording were minor punishments for students' flaws in the learning process, and were not sufficient to change the student's identity and harm their education opportunities, and did not have a practical impact on the education rights of the punished, The exercise of autonomy in running a university in accordance with the law should not involve excessive administrative power. The administrative reconsideration application submitted by the applicant does not fall within the scope of administrative reconsideration as stipulated in the Administrative Reconsideration Law of the People's Republic of China.

4、 Lawyer's advice

1. Due to the fact that appeals from educational administrative departments are a unique solution to educational disputes stipulated by educational laws and a statutory specialized system, current laws and regulations do not consider appeals as a pre litigation procedure. In addition, it is currently unclear whether the appeal made by the education administrative department is a disguised administrative reconsideration act. The above factors have led practical students to choose different ways of relief after being disciplined. Some directly file administrative lawsuits with the people's court with universities as defendants, while others first apply for review and appeal, exhausted administrative remedies, and then choose administrative litigation. Here, it is recommended that college students, on the one hand, strictly demand themselves, abide by school rules and regulations, and avoid being disciplined for violating discipline; On the other hand, if a student is subject to disciplinary action and believes that the school's disciplinary action is inappropriate or flawed, they can first apply for review and appeal within the statutory period in accordance with the relevant provisions of the "Regulations on the Management of Students in Ordinary Higher Education Institutions" to avoid missing the relief period. If students are still dissatisfied with the appeal handling decision of the education administrative department, they can apply for administrative reconsideration or file an administrative lawsuit for the appeal handling decision of losing their student identity.

2. Educational disputes in universities have special characteristics, and judicial authorities should respect the autonomy of higher education institutions in accordance with the law, and maintain judicial restraint and restraint. For management behaviors that seriously violate students' right to education, effective remedies should be provided and channels for relief should be unblocked to prevent the abuse of university power and properly protect students' legitimate rights and interests.