1. Introduction

Yuan xinli Sun Jingchao Law School Lanzhou University of Technology

Abstract: As a basic right, citizen’s right to education is of great significance to society and the nation. China has always attached great importance to educational legislation and formed the socialist educational legal system with Chinese characteristics. However, due to the wide range of people involved in education, different needs for education at different stages, and different problems faced by the central and local governments in education legislation, we need to carefully analyze the current situation of education legislation in China and propose targeted solutions for the realization of citizens’ right to education.

Key words: right to education; educational legal system; education legislation

1. Introduction

Education is the necessary way for people to survive and develop. As an important part of modern human rights, right to education has attracted wide attention from citizens and scholars. Paragraph 1, Article 26, Universal Declaration of Human Rights stipulates that “everyone has the right to education”. The reason why people are different from other animals lies in the ideas and knowledge they possess and one of the most important reasons is education. With imparted values, survival rules and

About the author: Yuan Xinli female 1977. 3 han. Fenyang, Shanxi Province Lanzhou University of Technology Associate professor Master Research on Teaching and Educa- tional Administration in Colleges and Universities. Sun Jingchao male 1996. 5 han. Xuecheng District, Zaozhuang, Shandong Province Lanzhou University of Technology Un- dergraduate Research on legal theory. Fund Project: National Philosophy and Social Science Project “State Obligations and So- cial Synergy: Research on Civil Society Rights Protection” (15xfx021). The Education Legislation Research Base Project of the Ministry of Education “Research on Legal Issues of Degree Granting in the Amendment of Degree Ordinance” (No. 2242018S30031).

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production skills, people are socialized and obtain the skills to make a living independently to survive in the complex society. The right to education is not only necessary for survival but also for development. After solving the problems of subsist- ence and food and clothing, people have to pursue a higher level of life through education.

From the objective value function of the right to education, the norm of citizens’ right to education in the Constitution has the function of legislative value and plays the role of establishing the legal order to guarantee the realization of basic rights. The objective value of the right to education requires the state to not only fulfill its obligation to protect citizens’ right to education from being infringed by public power or third party, but also enact legislation under the Constitution. 1) Educational legislation should always guarantee citizens’ right to education; 2) Priority should be given to the value of basic rights when the right to education contradicts with other rights or interests; 3) Administrative power of public organizations undertaking educational functions over students cannot exceed the right to education; 4) Local legislation can guarantee the right to education in the light of local socio-economic development, without violating the principles of the Constitution. The national prosperity lies in education, and building the great power in education is essential for the great rejuvenation of the Chinese nation. The current international competition is essentially the comprehensive national power competition based on economic strength and scientific and technological strength. As the primary productive forces, science and technology play a vital role in economic development and improvement of the level of science and technology lies in the continuous popularization and improvement of education. Without full realization of citizens’ right to education, it will be difficult to improve national quality and creativity and gain the initiative in the fierce international competition. The realization of a well-off society in an all-round way and the great rejuvenation of the Chinese nation are insep- arable from the recognition, respect, protection and realization of citizens’ right to education.

2. The current situation of China’s central and local education legislation

2.1 The basic formation of the national education legislation system The high degree of generality and principle of the Constitution makes it necessary for citizens to have the right legal system to cooperate in order to smoothly exercise their right to education. Articles 19, 24, 36, 42, 46, 47, 49, 89, 107, and 119

61 International Education And Development Vol.3 No.1 2019 of the Constitution of the People’s Republic of China provide a constitutional basis for citizens’ right to education. Article 19 stipulates the national sovereignty of education and the state obligations of pre-school education, compulsory education, secondary education, vocational education and higher education. Articles 26 and 17-20 of the Education Law, the Compulsory Education Law, The Higher Education Law, the Vocational Education Law, the Private Education Promotion Law, and the Imple- mentation Rules of the Compulsory Education Law have detailed regulations; Article 24 of the Constitution stipulates the concept of educating citizens on socialist core values. Other educational laws, such as Articles 3 and 6 of the Education Law, implement this policy in all stages of education; Article 36 of the Constitution stipulates that no one may use religion to engage in activities that hinder the national education system. Article 8 of the Law refines it into the principle of separation of education and religion; Article 42 of the Constitution stipulates that the state conducts employment and employment training for citizens before employment, Articles 20 and 41 of the Education Act and the Law on Vocational Education. This principle is con- cretely implemented; Article 46 of the Constitution stipulates that the state trains young people, teenagers, and children to develop in terms of morality, intelligence, and physical fitness. Article 5 of the Education Law and the Compulsory Education Law Article 3 and Article 4 of the Higher Education Law have made specific provisions; Article 47 of the Constitution stipulates that the state encourages and assists in the research and innovation that is beneficial to the people. The Education Law and the Higher Education Law do so. More specific provisions have been made; Article 49 of the Constitution stipulates the family obligations of parents to support underage children, Articles 19 and 50 of the Education Act, and Article 5 of the Compulsory Education Law makes specific provisions; Articles 89, 107, and 119 respectively stipulate that the State Council has the authority to lead and manage education work, the local people’ s government at or above the county level has the power to manage, and the national autonomous areas have the power to manage independently. The Education Law and the Compulsory Education Law. The “Higher Education Law” and the “Private Education Promotion Law” further standardize the responsibilities and authorities of governments at all levels.

It can be seen that since the promulgation of the “Regulations of the People’s Republic of China” in 1980, after nearly 40 years of development, the education law has basically covered the field of education in our country and played an important role in confirming, respecting, protecting and realizing the right to education of citizens; “Guided by the Constitution, eight educational laws are the main body, and more than 16 educational administrative regulations constitute a system of socialist education laws and regulations with Chinese characteristics[1] ”.

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Although China has basically established a relatively complete education legislation system, most of the confirmation, respect, protection and realization of citizens’ right to education have been supported by relevant supporting laws, but there are still many legislative gaps, and many education problems remain unresolved. according to. There is no relevant law follow-up for pre-school education and secondary education as stipulated in Article 19 of the Constitution. Although the pre-school education law has been incorporated into the legislative plan of the 13th National People’s Congress Standing Committee, there is still no legal support. Article 49 of the Con- stitution stipulates the educational obligations of parents. Family education is the main link in personal education. At present, there is no supporting family education law. The specific implementation rules are scattered in other laws and regulations such as the Education Law and the Compulsory Education Law. “Among them, the capacity is too small to meet the practical needs[2] ”. As for the life-long legislation, which involves the interpretation of Article 19 of the Constitution, the author be- lieves that the content of the “national people” in the article is not only national, but also includes people of all ages, and this is what lifelong education refers to. At the stage of the total education received, then China also lacks supporting legislation for lifelong education. In fact, both preschool education and lifelong education can be regarded as part of the education stage. Family education belongs to the main content of education, while education stage and education subject are essential parts of education legislation system. The classification system of education legislation is based on which ad- justment object is made in the education system targeted by relevant education legislation. It horizontally reflects the coverage of education law to protect citizens’ right to education, and vertically reflects the law and regulations and the constitution. degree. In the Anglo-American legal system countries, jurisprudence plays an important role in education law. For example, in the 1973 “Texas Campus Funding Case”, the Supreme Law examined whether the restrictions on educational opportu- nities are in line with the “equal protection” provisions of the Constitution, so the Anglo-American law system the state’s written education legislation does not pursue system and improvement. Japan and China belong to the same civil law system, and its educational legal system construction has certain reference significance for China. The Japanese Basic Education Law divides all education-related laws and regulations into three categories: “educational activities, educational activities, and education administration”. Horizontally, it covers all aspects of education legislation. In the vertical direction, the principle of improving the operability from top to bottom ensures the effective implementation of education laws and regulations. This shows

63 International Education And Development Vol.3 No.1 2019 that China’s current education legal system is not perfect, the coverage and supporting degree are insufficient, and the main reason for the existence of more legislative gaps is that “China’s current education laws and regulations lack systematic logical connections and interconnections, and relevant education legislation is not strict. Built according to the legislative classification dimension” caused[3] . 2.2 Education local legislation continues to advance 2. 2. 1 General status of local education legislation Governing education according to law is an important part of comprehensively governing the country according to law. The “Implementation Outline for the Imple- mentation of Law (2016-2020)” points out that it is necessary to construct a sound education law and system, strengthen education legislation, and actively promote the construction of local laws and regulations. According to the Laws and Regulations Database of Peking University, as of March 2019, there are 200 provincial-level local education regulations, 97 municipal-level local education regulations, 10 special economic zone education regulations, 34 educational autonomy regulations and separate regulations. A total of 147 local government education regulations. Geographically, the distribution of local education legislation in China is not uniform, but generally decreases from east to west with the level of regional economic development. There are 8 provincial-level local education regulations in Jiangsu Province and Shandong Province. There are 12 local education regulations in Shanghai, and new local education regulations have been enacted in 2017 and 2018; Qinghai Province, Tibet Autonomous Region, Ningxia The Hui Autonomous Region and Guangxi Zhuang Autonomous Region have one, four, five, and four provincial-level local education regulations. Among them, Qinghai Province has only revised the 2009 Law on the Implementation of the Compulsory Education Law of the People’s Republic of China. The legislation was introduced in 2014 on the implementation of the “National Defense Education Law of the People’s Republic of China”. The latest legislation of the Ningxia Hui Autonomous Region is the “Envi- ronmental Education Regulations” promulgated in 2011. The Guangxi Zhuang Au- tonomous Region also formulated and issued the “Guangxi Zhuang Autonomous Re- gion occupation” in 2011. Education Ordinance. It can be seen that compared with the more developed eastern regions, the provincial education regulations of ethnic minority autonomous regions in China have not been updated for many years, failing to follow up the central education legislation in a timely manner, and most of them are supporting legislation of the central education law. From the perspective of legislation type, based on the analysis of national provincial education legislation data, local education legislation can be roughly divided

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into repetitive legislation, explanatory legislation, and creative legislation. Reaffirm- ing that legislation is a repetition of the excerpts of certain educational legislation documents of the central government, and no new rules are formed. It is mainly used in ethnic autonomous areas in order to remind local people to comply. For example, in 2000, the General Office of the People’s Government of Guangxi Zhuang Auton- omous Region forwarded the Notice of the Ministry of Education and Other Depart- ments of the Autonomous Region on the Implementation of the Interim Measures for the Implementation of National Student Loans, which stipulated that “the regional administrative departments, cities and counties. . . ” Interim Measures for the Imple- mentation of National Student Loans “The consent of the people’s government of the autonomous region has been forwarded to you, please implement it carefully[4] ”. Explanatory legislation is based on the central education legislation, based on the actual situation of the local government to make more specific provisions, the es- sence of which is the supporting legislation of the central education legislation. For example, Shandong Province implements the “People’s Republic of China Teacher Law”, the first of which stipulates that “in order to protect the legitimate rights and interests of teachers, strengthen the construction of the teaching staff, and promote the development of socialist education, according to the “People’s Republic of China Teacher Law”, combined The actual situation of the province is formulated. The en- actment legislation is to solve the educational undertakings in the region in accordance with the central authority or policy or the actual situation and needs of education in the region without the relevant central legislation or the superior law. Develop problems encountered. For example, the “Shandong Provincial School Safety Regu- lations”, the first of which stipulates “in order to protect the safety of the school. . . According to the laws and administrative regulations of the People’s Republic of China Education Law and Compulsory Education Law of the People’s Republic of China, combined with the actual situation of the province, these regulations are formulated.

From the content point of view, based on the empirical analysis of 340 local sexual education regulations (excluding autonomous regulations and separate regulations), China’s local education legislation is rich in content, covering a wide range of fields, which can be roughly divided into supporting pre-school education and compulsory education, higher education, vocational education, national defense education, private education, education funding, education supervision, minority education; Innovative such as family education, lifelong education, campus security, old age education. The number of legislations involving compulsory education has reached 71 at most, showing the importance of domestic compulsory education; Sec-

65 International Education And Development Vol.3 No.1 2019 ondly, it involves 39 departments of teacher management, 32 departments of Voca- tional Education and 18 Departments of education supervision. In the five years from 2013 to 2019, there were 86 local regulations, the most involved of which were vocational education, a total of 12, reflecting the rapid development of vocational education legislation; followed by minority education, a total of 10. It reflects the economic development of ethnic minority areas in the past five years and the increasing emphasis on education. With the recent occurrence of school violence and security incidents, local education legislation involving campus security has also increased and reached seven, such as The Kunming Municipal School Safety Regulations and the Regulations on the Prevention and Treatment of Personal Injury Accidents of Students in Hefei Primary and Secondary Schools; in the face of the current high- profile family education and lifelong education, local education legislation has also responded, reaching a total of seven Campus security, family education, and lifelong education are currently part of local creative legislation.

Taking Shandong Province with a high level of educational development as an example, the current Shandong education regulations and rules system has basically formed. There are 8 education regulations and 3 provincial government regulations, involving school safety, education supervision, scientific popularization, compulsory education, occupation. Education, teacher management, language, school bus management. “The current 11 provincial education regulations and regulations are the supporting legislation for the central education legislation, and the five are the legislative legislation of Shandong Province. The Shandong Provincial Health Promotion Regulations and the Shandong Province promulgated and implemented in 2018 and Shandong The Provincial School Safety Regulations are the latter[5] ”. 2. 2. 2 Characteristics and deficiencies of local education legislation First, innovative legislation has developed rapidly. After 40 years of development and improvement, China’ s local education legislation has gradually formed a “wide coverage, multi-level three-dimensional legal network, the structure is relatively complete, the content is basically comprehensive, the level is clear, and the function is relatively clear[6] ”. It is worth noting that in recent years, many provinces and cities have made corresponding innovative legislation on social hotspot issues and the education issues that the people are most concerned about, while the local supporting regulations and regulations are basically complete, not just limited to The mechanical refinement of the central education legislation, based on local realities, responded to the needs of the society and walked in front of the central education legislation. For example, “Several Provisions on Preventing and Curbing Campus

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Bullying in Tianjin” have made corresponding provisions on the popular school bullying problem in recent years. Second, local legislation provides practical experience for central legislation. In addition to the above-mentioned creative legislation, local legislation also provides valuable materials and experience for the relevant education legislation of the central government. For example, before the promulgation of the “Several Opinions of the State Council on Current Development of Preschool Edu- cation” in 2010, the “Pre-school Education Regulations of Beijing” and the “Regu- lations on Pre-school Education Management of Taiyuan City” in 2001 have already made relevant provisions on local preschool education. Article 13 of the Regulations on Preschool Education Management in Taiyuan City stipulates that “in the case of newly built residential areas, kindergartens of appropriate scale shall be constructed. The supporting kindergartens shall be designed, constructed and accepted at the same time as the main projects.” 2010 State Council on current development. The second article of the “Opinions on Preschool Education” affirmed it. “The construction of urban communities should be based on the size of the residential area. Kindergartens should be synchronized with the planning, construction, delivery and use of the com- munity. The supporting kindergartens should be at the same time as the main project. Design, construction, acceptance[7] ”. However, there are still many problems in China’s local education legislation. First of all, the uneven geographical distribution of education legislation has indi- rectly led to uneven education levels in the country. The gap between the eastern economically developed regions and the western regions, especially in minority areas, is not only reflected in the insufficient number of supporting legislations, but also lacks specific systems in educational practice. It is also reflected in the fact that the education legislation is not updated in time and the investment is low. Secondly, the local supporting education legislation is still very lacking. For example, Shan- dong Province also lacks support for the supporting system of higher education, national defense education and private education, due to the central education legislation. The principle is strong, and the lack of local education legislation will face an urgent problem that cannot be used to implement the central education law. Finally, at present, the local legislation of education in China is mainly based on explanatory supporting legislation, the number of creative legislation (confined to theoretical bar- riers) is small, it is difficult to respond to the problems arising in local educational practice, and there are more horizontal similarities in local education legislation, such as “Jiangxi Province private Education promotion regulations” and “Guangdong Province implementation The measures for the promotion of private education in the People’s Republic of China” are not only similar in style, but also have many similarities in content, do not reflect local characteristics, and run counter to the original

67 International Education And Development Vol.3 No.1 2019 intention of the liberalization of local legislative power.

3. Filling the gaps in education legislation and promoting local creative education legislation

3. 1 Accelerate the legislation in the blank area of central education The National Medium- and Long-Term Education Reform and Development Plan (2010-2020) proposes that certain laws should be formulated and revised in accordance with economic development and social needs, but as of March 2019, the Vocational Education Law, the Degree Regulations, and The Teacher Law has not been revised as planned, and laws on examinations, schools, lifelong learning, preschool education, and family education have not been introduced. At present, the most urgent task is to strengthen the reform and release of waste, and accelerate the education legislation on examinations, schools, lifelong learning, preschool education, family education, etc. to fill the legislative gap. Accelerate the revision of the relevant provisions of the Education Law, the Vocational Education Law, the Higher Education Law, the Degree Regulations, the Teacher Law, and the Private Education Promotion Law that do not meet the needs of economic and social development, attach importance to the interpretation of education laws and regulations, and en- hance the timely development of education laws and regulations. Sexual, systematic, targeted, and effective. 3. 2 Absorbing the theory of education system in other countries The trend of internationalization of education requires us to learn from the ab- sorption of foreign useful experience, including foreign laws, practices, and relevant provisions of international law. “Education as a whole also includes the relationship between education and family, society and market. Therefore, based on the classification of Japanese education legislation, education legislation can be divided into educational activities, educational activities, education and government, education and education. Society, education and market, special types[8] ”. The main body of educational activities includes students, teachers, and schools; the educational activities process includes various stages of education, such as pre-school education, compulsory education, secondary vocational education, and higher education. It also includes specific processes such as entrance, progression, examination, and completion. And links should have supporting legislation; education and government include education funding, education management, education fairness and other relevant norms; education and society including family education, social education; education and market including private education and for-profit education institutions; Special

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types include ethnic education and education for the disabled. All the above links should have corresponding supporting laws and regulations, systematically cover the internal relationship of education and the relationship between the education system and the outside, which is conducive to the mutual connection between China’s education laws and avoid cross-repetition. 3. 3 Promote local supporting education legislation and encourage creative education legislation The law is a superstructure based on the economic base. The obstruction of education legislation in the western and ethnic minority areas has its objective reasons, so that it is difficult to invest a large amount of resources for legislative work. It is necessary to attach importance to the training of legislative talents in the western and ethnic minority areas, and to other provinces through on-the-job learning, short-term training, and job-based exchanges. Learn useful experiences and improve their busi- ness capabilities and local education legislation. The development of information technology makes legislative forecasting more convenient. For the creation of education legislation, we should pay attention to the use of big data, adhere to the problem-oriented, collect relevant party and state education policies, research on relevant educational theories at home and abroad, focus on collecting information on social hotspots, implementation of relevant education legislation in other regions, etc. The actual situation of education in the region re- volves around the difficulty of education and the precise legislation, such as the legislation on urban supporting areas in urban areas. Attach importance to the planning of education legislation, prioritize and prioritize local education legislation in a planned and targeted manner. The lack of supporting local education legislation in the western and ethnic minority areas is more urgent than that in the eastern region. Therefore, in the future, we should focus on perfecting the supporting education legislation and carry out creative education legislation as far as we can. The local education legislation in the eastern and economically developed areas is relatively perfect. Under the background of the revision of the central education legislation in the future, it is necessary to adhere to both the creation of legislation and the formulation and revision of supporting legislation. China has a vast territory and huge differences between regions. It is often difficult for central education legislation to solve problems in local education practice in a timely and effective manner. The value of local creative education legislation is also reflected in the first-in-first-trial test, but the creation legislation often goes be- yond the constitution and Law, it is therefore necessary to strengthen the supervision

69 International Education And Development Vol.3 No.1 2019 of local creative education legislation. It may be considered to set up a special legislative supervision body within the provincial people’s congress. If you are dissatis- fied with the legislative supervision decision, you can also appeal to the Constitution and Law Committee. At the same time, local creative education legislation is in full swing. At the same time, the theoretical and empirical analysis of local creative education legislation is lacking. We should pay attention to its history, characteristics, trends, significance, achievements and problems. Theoretical and empirical research.

4.Conclusion

With the continuous deepening of education reform, the education field has the characteristics of diversification of interests and diversification of contradictions. This also puts forward new and higher requirements for China’s education legislation. With the continuous improvement of China’s comprehensive national strength and the deepening of educational legislation theory research, the development of China’s education legislation is still promising, and the protection of citizens’ right to education will be more comprehensive, specific.

Works Cited [1] Ye Qilian. ‘Reflections on Improving China’s Educational Legal System’. China Higher Education Research, 2019 (02): 16-20. [2] ‘The All-China Women’s Federation called for the inclusion of the Family Educa- tion Law in the five-year legislative plan’. China News Network. http://www. chi- nanews. com/gn/2018/03-01/8457466. Shtml. [3] Qin Huimin, and Guempeng. ‘Thoughts on perfecting the legal system of education in China’. Journal of Beijing Normal University: Social Science edition 2 (2016): 5-12. [4] ‘Notice of the General Office of the People’s Government of the Autonomous Re- gion to Forward the Interim Measures for the Implementation of National Student Loans by the Department of Education and Other Departments of the Autonomous Region’, Guangxi Political News-2000-07-20. [5] Deng Yunfeng. ‘Actively promote legislation to solve educational problems’. Jour- nal of the National Institute of Educational Administration 1 (2019). [6] Qin Huimin, and Guempeng. ‘Thoughts on perfecting the legal system of education in China’. Journal of Beijing Normal University: Social Science edition 2 (2016): 5- 12.

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[7] ‘The decision of the Standing Committee of the Taiyuan Municipal People’s Con- gress in 2016 on the revision of the five local regulations including the Measures for the Protection of the Rights and Interests of the Elderly in Taiyuan City does not include the revision of Article 13 of the 2004 Taiyuan Pre-school Education Management Regulations’. [8] Qin Huimin, and Guempeng. ‘Thoughts on perfecting the legal system of education in China’. Journal of Beijing Normal University: Social Science edition 2 (2016): 5- 12.