The third anniversary of national supervision system reform: theoretical innovation and practical exploration
Slide view
1. Wang chunye: on giving the supervisory organ the legislative power
2. Chu chenge, Wang Yang: Legislative Construction of China's ombudsman system -- Suggestions on the scope and qualifications of the Ombudsman
3. Han Xu: Research on the procedure of handling duty crime cases by the supervisory committee -- Taking 768 judicial documents as an example
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On giving the supervisory organ the legislative power -- Comment on the decision of the Standing Committee of the National People's Congress
Wang chunye (Doctor of law, Professor, School of law, Hehai University, research direction: Legislative Law and administrative law)
Abstract: the supervisory organ should be given certain legislative authority, which is the need of the construction of the supervisory legal system, the smooth development of the supervisory work and the protection of the legitimate rights and interests of the supervised. In order to endow the supervisory organ with the power of establishing law, we must solve the problem of the lack of legal provisions, clarify the misunderstanding of the nature of the supervisory organ and the joint office with the Commission for Discipline Inspection. At present, the decision of the Standing Committee of the National People's Congress is difficult to meet the needs of legislative empowerment, so it is necessary to modify the legislative law and other relevant laws to give the supervisory organ the legislative power. It is necessary to clarify the level of the supervisory organ that exercises the legislative power, and only the state supervisory committee can exercise the legislative power of supervision; it is necessary to stipulate the scope of the legislative power of the supervisory organ, that is, to refine or stipulate the supervision authority, the scope of the supervision object, the supervision procedure, the connection between supervision and judicature, and the internal management of the supervisory organ; it is necessary to clarify the way of exercising the legislative power of supervision, including the formulation of supervision To make clear the supervision problems of supervision legislation, supervision legislation should be subject to the record examination of the state authority.
Key words: supervisory organ; legislative power; state organs
DOI：10.14134/j.cnki.cn33-?1337/c.2020－27212
Chinese Library Classification No.: DF01 document code: a
Not long ago, the Standing Committee of the National People's Congress made the decision on the formulation of supervisory regulations by the state supervisory committee (hereinafter referred to as the decision), which temporarily solved the problem of the power of the state supervisory committee to formulate supervisory regulations in the form of a decision. However, as a special organ for exercising the function of state supervision, should the supervisory organ be given certain legislative authority? If we want to give it legislative power, what obstacles will we encounter and what misunderstandings need to be clarified? How to give its legislative authority? And so on, these are the practical problems that inevitably face with the further implementation of the supervision system. These problems are not only legislative problems, need to be solved in law, but also many theoretical problems need to be studied, need to be elaborated in jurisprudence, to provide a theoretical basis for the legislation of supervisory organs. At present, there are many researches on the interpretation of the supervision law and the connection between supervision and judicature, while less attention is paid to the legislative power of supervision organs. This paper argues that supervisory organs should be given certain legislative power, but also the Standing Committee of the National People's Congress "decision" for a certain interpretation, which is very valuable at the moment.
One
The legitimacy of giving supervisory organs the right to establish laws
The legislative empowerment of supervisory organs is the practical need for the in-depth implementation of the supervisory system. In this regard, the note of the Standing Committee of the National People's Congress on the draft decision of the state supervisory committee on the formulation of supervisory laws and regulations (hereinafter referred to as the note of the draft decision) expounds its necessity, which is considered as "the power and means required to perform the constitutional and legal duties". If theoretically analyzed, the legitimacy of giving supervisory organs the right to establish laws should be reflected in the following aspects at least:
（1） It is the need of supervision legal system construction
As a national system, supervision must run on the track of rule of law and have a sound legal system of supervision. At present, China has formulated the supervision law, which is the basic law of supervision and the main basis of supervision work in China. However, it is not enough. The supervision law is still "a law that plays a leading and basic role in the supervision work of the country", and a complete set of legal norms is needed, thus forming a complete supervision legal system.
Generally speaking, the legal system is a system composed of the constitution as the commander, the legal norms as the backbone, administrative regulations and local regulations. Not only does the state have legal system problems at the overall level, but also in each field, there is a relatively self consistent legal system. As far as the field of supervision is concerned, at present, in the constitution, the national supervision system has been stipulated, and a governance structure has been formed in parallel with legislation, administration and judicature; in law, there has been a supervision law as the basic law. However, since the supervision organ of our country has completely separated from the original administrative supervision system which is only limited to the supervision of administrative organ personnel, and has become a national supervision system with independent status, the supervision legal system is no longer within the scope of administrative supervision law, but a legal system with independent status, and the original administrative regulations and local regulations are no longer applicable In the newly established supervision work. "The process of legal innovation is a process of breaking old and creating new. Legal innovation is a comprehensive innovation, including the reconstruction of legal system, the innovation of legal content, the transformation of legal concept, and the reform of legal operation system. "At present, the supervision committees at all levels mainly exercise the supervision power given by the Constitution in accordance with the supervision law, but there is still a gap to meet the actual demand of fighting against the crime of duty violation. Based on this, it is imperative to establish a supervision legislation system based on supervision law. It is necessary to establish a special supervision law system with Chinese characteristics, including: the completed constitution and supervision law; the ongoing revision of relevant laws in coordination with the supervision law; in the future, it is more necessary to strengthen the supporting laws and regulations that specifically implement or refine the provisions of the supervision law More laws and regulations should be implemented.
However, who will formulate the legal norms needed for the construction of supervision legal system? In theory, it is better for the Standing Committee of the National People's Congress to formulate it in the form of laws. However, the Standing Committee of the National People's Congress is not only unable to do this kind of work in terms of time and energy, but also makes further detailed regulations on matters in the specific practice of supervision work, and the state power organs are more difficult to do it, because it is difficult for the state power organs to have a more comprehensive understanding of the supervision work, which is far less clear than the supervision organs themselves. That is to say, in terms of the operability and feasibility of legislation, the supervisory organ is the best one to understand the legal norms needed by supervisory practice. Therefore, it is more appropriate for the supervisory organ as the legislative body to improve the supervisory legal system, while the state power organ can only make provisions in the macro aspect at most. For the legal norms of daily work, it should be formulated by the supervisory organ, and the state power organ can only make legislative supervision. Just like in the field of administrative management, the State Council and relevant ministries and commissions improve the legal norms in the field of administrative management in the form of administrative regulations or departmental rules, the supervisory organs constantly improve the supporting legal norms system in the field of supervision, which is more realistic and targeted. For this reason, only by giving the supervisory organ a certain legislative power, allowing the supervisory organ to formulate detailed legal norms with legal binding force, and strengthening the supply of supervisory legal norms, can we realize the task of continuous improvement of the supervisory legal system and promote the legalization of the supervisory work in China.
（2） It is the need for the smooth development of supervision work
Since the implementation of the supervision law, China has established a complete system of supervisory organs from top to bottom, including national supervisory organs, provincial supervisory organs, municipal supervisory organs divided into districts, county and district supervisory organs, forming a relatively large supervisory organ system, forming a full coverage of supervision for state public officials. In order to make the system of supervisory organs work smoothly, the state supervisory organs must formulate some specific working norms, because "some statements of principles in the supervisory law need to be further specified", and the reality is so complex, new problems continue to appear, "due to the negligence of legislators, the legal norms have not foreseen, or the situation changes, resulting in a certain law When there are no provisions, the state supervisory organ is required to issue new provisions and requirements on a regular basis according to the needs of supervisory work, so as to standardize the work of supervisory organs at all levels. However, an inevitable problem is what is the nature of the norms formulated by the state supervisory organs? Is it just a general normative document? If these regulations and requirements issued by the state supervisory organs only stay in the scope of normative documents, they will not have legal effect and binding force, which will not only make it difficult to achieve the binding effect on the supervisory organs at all levels, but also cause damage to the strictness of the supervisory work, which is not conducive to the normalization of the implementation of the supervisory system; if they are only normative documents, Its legal effect is not high, it is not only difficult to have binding force on lower level supervisory organs, but also difficult to have binding force on other organs besides supervisory organs. In order to integrate internal elements, a system must have an order issuing mechanism and a rule-making power. However, the supervisory committee is unable to feed back the omissions of anti-corruption legislation, integrate the "order issuing" internally and guide the anti-corruption strategy externally [5]. Therefore, only when the supervision organ is given certain legislative power and the legal level and legal effect of the norms formulated by the supervision organ at the relevant level are clear, can the legal binding force of the documents formulated be ensured and the supervision work be carried out orderly.
（3） It is the need to protect the legitimate rights and interests of the supervised
The supervision law regulates the scope of supervision objects and supervises all public officials and relevant personnel, which embodies that the supervision law "broadens the extension of public power as much as possible, complements multiple identification elements of supervision objects derived from the connotation of broad public power, and embodies the legislative guidance of full coverage of supervision". The supervision work involves the violation of disciplines and even crimes of public officials and relevant personnel, personal rights, reputation rights and future prospects of public officials, "is critical of the supervision object, which is often negative", which cannot be ignored. It must be carried out within the scope of the rule of law, without any randomness. Therefore, the supervision law clearly stipulates that "the legitimate rights and interests of the parties shall be protected", and provides specific measures for the protection of the legitimate rights and interests of the monitored objects from various aspects. However, these Provisions are relatively principled and not refined enough, and need to be refined and implemented by the supervisory organ in practice. For example, as far as the retention measures of the supervision object are concerned, there are some deficiencies, such as the use intensity is not differentiated, how to set the place is not clear, the time limit is to be improved, the approval and implementation of the cancellation provisions are to be improved, the external supervision provisions are to be improved, and the relief provisions are to be improved, which leave too much discretion space for the supervision organ. If there is no restriction on this discretion space, there is a lot May cause damage to the legitimate rights and interests of the monitored object. According to statistics, there are 12 expressions of "need" in the supervision law, which make it convenient for the supervision organs to investigate and deal with illegal and criminal acts,