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特别权力关系理论发轫于19世纪的德国,后为日本和我国台湾地区所借鉴援引。传统特别权力关系理论的显著特点即为对法律保留原则和司法最终救济制度的排除,因此这一理论受到了来自理论界和实务界的质疑、批判与修正。我国虽未明确确立该理论,但在高等学校领域一直存在且适用着未经修正的传统特别权力关系,这为学生、教师权利的有效保护设置了理论障碍,应当予以修正。
The theory of special power relations started in Germany in the 19th century and was cited by Japan and Taiwan in China. The notable feature of the traditional theory of special power relations is the exclusion of the principle of legal reservation and the final system of judicial remedies. Therefore, this theory has been questioned, criticized and amended by theorists and practitioners. Although our country has not clearly established this theory, it has existed and applied the uncorrected traditional special power relations in the field of higher education. This set a theoretical obstacle for the effective protection of the rights of students and teachers and should be amended.