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新《义务教育法》实施两年来,有关流动儿童接受义务教育的“财力供给”、“程序安排”、“诉责路径”等漏洞日渐浮出水面。由于这些漏洞无从获得地方立法逐一弥补的积极动机,客观上使流动儿童的平等受教育权仍然面临“权利限制”与“权利虚置”风险。为此,如何从问题消解角度赋予其可行的司法救济已经刻不容缓。立足国情,应当考虑在克服宪法诉讼壁垒的路径上确立行政给付之诉。
In the two years since the implementation of the new Compulsory Education Law, loopholes such as “financial resources ”, “arrangement ” and “prosecution path ” of mobile children receiving compulsory education gradually surfaced. Since these loopholes can not obtain the positive motivation of local legislation to make up one by one, objectively, the equal right to receive education of migrant children still faces the risk of “rights limitation” and “emptiness of rights.” For this reason, how to give its viable judicial remedy from the angle of problem solving has been urgently needed. Based on the national conditions, we should consider establishing a lawsuit for administrative compensation on the path of overcoming the constitutional lawsuit barriers.