关于我国行政问责制的探索

【作者】 朱竞杰；

【导师】 董茂云；

【作者基本信息】 复旦大学 ， 法律， 2009， 硕士

【摘要】 2003年非典事件后,我国行政问责制成为我国新一轮政治改革备受关注的亮点。温家宝总理在2006年《政府工作报告》中进一步提出要建立健全行政问责制,提高政府执行力和公信力。行政问责制度对于推进民主政治,实现社会公平正义,提高政府执行力和公信力,对于推进依法行政和行政管理体制改革,对于建立高效、廉洁的责任政府,对于建设社会主义政治文明,都具有极其重要的现实意义。随着行政问责制在我国的逐步推行,对行政问责制度的理论研究也越来越成为一个紧迫而现实的课题。但是,当前我国行政问责制在实践中还存在很多问题,学界对行政问责制的研究亦不多,难以为我国行政问责制度的建设提供充足的理论支撑。鉴于此,笔者试图在这方面做出有益的尝试。本文对我国行政问责制进行了一些思考和探索,文章共分四章。第一章系行政问责制的基础理论:笔者对行政问责制的概念和内涵进行了深入的分析,认为行政问责制是行政机关依法对各级政府机关及其公务员,违反法定职责和义务、行为不当等行政行为,责令其承担相应责任的制度,并剖析了把行政问责制理解为引咎辞职、责任追究、上问下责的认识误区。笔者选择控权论来具体阐释行政问责制的基本原理:正是由于控权的需要,一旦行政权力被滥用或异化,就应该依法追究其责任,也即对行政机关及其行政人员实施问责。行政问责制的基本原则是建立和推行行政问责制的基本要求,也是行政问责活动的指导思想和方针,是确定行政问责的依据和标准,笔者认为贯彻执行行政问责制必须遵守依法问责原则、行政权责对等原则、公民有效参与原则和平等原则。第二章系我国行政问责制的基本内容:笔者对我国行政问责制作了概括性考察,随着我国政治民主化进程的加快,人们对公共行政领域中违法行政行为日益关注,不仅要求政府对那些政策执行人员进行惩处,而且希望政府对居于决策地位的高层官员追究政治责任。我国近年来的问责实践,一个引人注目的特点是,从中央和地方开始把对官员的问责从非常时期的非常措施走向了制度化的轨道,笔者主要对我国当前《公务员法》、《突发事件应对法》、《关于党政领导干部问责的暂行规定》等法律法规和党纪规定进行了分析。第三章系对我国行政问责实践的分析和思考:行政问责制一方面是我国行政问责制起步较晚,理论和实践方面都取得了一定的成绩,另一方面是行政问责制在我国的推行毕竟时间短暂,而且受到体制环境等诸多因素影响和制约,不可避免地带有一定的缺陷和不足之处。笔者梳理了部分典型行政问责案件,反思了我国行政问责案件凸显的特点,并对行政问责实践中发现的职责权限规定不清、责任主体难以明确、全国性行政问责法律规范缺失、问责依据不足等问题进行分析。第四章系完善我国行政问责制的若干探索:首先是树立行政问责的理念,问责理念是问责制的灵魂,未来我国要深入实施问责制,就必须树立行政问责的理念。其次是加强行政问责制的立法,基于我国目前缺乏统一法律的现状,有必要制定一部全国统一的《行政问责法》作为指导,明确规范问责主体及其权力,规范问责制客体及其职责,理清问责事由和情形,界定责任的种类和内容,完善问责程序。同时,健全行政问责配套制度建设,加强新闻媒体监督,健全公众监督制度,建立行政问责救济机制,建立合理的问责官员进退机制等。更多还原

【Abstract】 Since the SARS crisis in 2003, the Administrative Accountability System has become a hot topic in the new round of political reform. In the Government Work Report of 2006, suggestions on further improving the administrative accountability system are put forward by Chinese Premier Wen Jiabao. This system is of great significance to the promotion of democratic politics, the realization of social fair and justice, the enhancement of executive ability and public trust of the government, and the advancement of administration by law and administrative management system reform as well. It is also significant in building an effective, honest and responsible government as well as in the construction of socialist political civilization.With the implement of the constitution of administrative accountability, theoretical researches on this system are becoming a more and more urgent and realistic project. However, little theoretical support is provided in the construction of the administrative accountability system as there are still many problems when this system is carried out and few researches on this system in academic circles. Seeing that, the writer tries to make some helpful attempts in this aspect. This essay is of some exploration and consideration about the constitution of administrative accountability in China, including four chapters.Chapter One The Basic Theory of Administrative Accountability System : The writer analyses deeply the definition and connotation of this system as well as some cognitive mistakes misunderstanding this system as blame-taking resignation, responsibility investigation or the principle of superior responsibility system. It is considered that the constitution of administrative accountability is a system in which administrative organizations, according to law, order the government institutions at various levels as well as their civil servants who are in breach of the statutory duty to take corresponding responsibilities. Theory of power is used here to illustrate specifically the fundamental principle of the administrative accountability system. Due to the needs of power control, administrative organizations and their officials should be called to account once the administrative power is abused or alienated. The fundamental principle of the administrative accountability system is the basic requirement of the establishment and promotion of this system, the guidelines and principles in the implementation of this system, and the basis and standard in how to define the administrative accountability. Such principles as accountability in conformity with legal provisions, equality between administrative power and accountability, effective participation of citizens and equality must be complied with during the enforcement of administrative accountability system.Chapter Two The Basic Content of Administrative Accountability System in China:Comprehensive investigation is made by the writer. As political democratization quickens its progress in China, increasingly closer attention is paid to the illegal administrative behavior in public administrative field. The government is not only demanded to penalize the policy executors, but also expected to investigate political liability to the senior officials who are also decision-makers. There is an attractive feature in the implementation of the administrative accountability in recent years, that is, accountability for principle officials have been changed from unusual measures to institutionalization, either in central government or the local. Laws and regulations and Party Constitution, for example, Civil Servant Law, Emergency Preparedness and Response Act, and Provisional Regulations on Accountability of the Party and Government Leading Cadres, are analyzed in this chapter.Chapter Three Analysis and reflection of the Practice of Administrative Accountability System in China: On one hand, China hasn’t enforced Administrative Accountability System for long, but it has made good achievements in theory and practice; on the other hand, there still exist some inevitable defects and shortcomings on account of the Administrative Accountability System, which are affected and limited by the environment of social systems as well as other various factors. The author has rearranged some typical Administrative Accountability cases, rethinking on the features shown in the Administrative Accountability cases and analyzing a series of problems found in the practice of Administrative Accountability.Chapter Four Research on the perfection of Administrative Accountability System in China: First of all, we should establish the conception of Administrative Accountability, which is the core of Administrative Accountability System. To further Administrative Accountability System, our country must establish the conception of Administrative Accountability. Secondly, we should strengthen legislation of Administrative Accountability. Considering the fact that our country lacks universal laws, we find it necessary to work out a universal law Laws of Administrative Accountability in which we should explicitly standardize the main part and its authority as well as the object and its duty; make sure of the cause and situation of accountability, define the types and content of accountability and perfect the procedures of accountability. At the same time, we should improve the construction of systems related to Administrative Accountability, strengthen the supervision of news media, improve the supervision of the public, establish the relief system of Administrative Accountability, and a reasonable system which determines officials being held accountable to advance or retreat and so forth.更多还原