【作者】 黄修海；

【导师】 李满春；

【作者基本信息】 中南大学 ， 宪法学与行政法学， 2010， 硕士

【摘要】 行政机关公务员在履行公职之外从事其他职业活动,或者在国家机关兼任多个职务的现象,并不罕见,时常引起社会的广泛争议,有的还是公务员腐败的诱因、表现形式,备受社会诟病。据此,我们是否可以断定,公务员的兼职行为必须禁止,禁止令一出就会药到病除?文章以此进行了深入思考。作者为缩小范围、集中话题和降低难度,从我国庞大的公务员队伍、众多系统的公务员类别里析取行政机关的公务员作为研究对象,探讨他们的兼职行为,在全面梳理国内曾有的规范性文件和借鉴国外相关做法的基础上提出规制的原则和方法,为实践献计,为立法献策。文章全面阐述了行政机关公务员兼职行为的基本问题,包括兼职行为的概念、特征,公务员兼职行为的起因、种类和法律属性,公务员兼职行为法律规制的基本目的、法理基础和现实依据等,认为行政机关公务员本职之外进行其他兼职活动,有一定的合理性和必要性,不能一概而论,不能断然否定。对于哪些可以有公务员本人自主选择、哪些必须绝对禁止,哪些必须履行一定的程序,文章也进行了初步分析。在此基础上,作者以文本为主、实践为辅的方法,结合他们在湖南省中部某县的调研走访了解到的情况,对我国建国以来有关规制兼职行为的大量规范性文件分阶段逐一进行分析评议,指出它们存在着法律层级较低、权威性不足,政策性明显、制度刚性不足,制度规范过于原则简单、不够精细全面,习惯于集中清理整顿、运动式执法,习惯于简单的行政手段、缺乏内在动力和外在压力,长期的重实体轻程序等诸多缺陷,使规制难度大,效果不持久,复发率高。为此,作者认为,必须确立规制而不是禁止的基本态度、公务优先原则、利益衡量原则、避免利益冲突原则、权力监督与制约原则等基本原则,从审批主体、审查内容、审查强度等方面进行实体规制,从审批程序、异议程序、撤销程序等方面进行程序规制,引入人事争议仲裁和民事诉讼赔偿等作为救济手段,以兼职行为信息公开制度、公务员家庭财产申报制度和转变政府职能、公务员退休、离职后的从业限制为辅助手段和配套制度,实现全面、合理、有效的规制。更多还原

【Abstract】 It is not rear that civil servants taking other jobs after their execution of duties or holding more than one title in the state organs of different levels. These phenomena described above are usually widely controversial in the society. Some of them are even inducements or forms that indicating corruption of civil servants, and they are widely condemned.Based on such description, can we conclude that civil servants’taking part time jobs or holding more than one title must be forbidden,and the ban will work immediately as well as thoroughly after it is laid? The essay pores deeply on this matter.In order to narrow scope, being concentrative as well as reducing difficulty, the author makes civil servants of administrative departments out of the nation’s large civil servants force and so many categories of civil servants in different systems as study subject.By studying their taking part time jobs or holding more than one title, the author will raise criteria and measures for the statutes on the basis of comprehensive collection of domestic existing standardized documents and drawing experience from abroad so as to offer advice for practice and make suggestions for statutes.The essay describes fundamental issues of civil servants of administrative departments taking part time jobs or holding more than one title in a comprehensive way, including the conception, characteristic, law attribution, reason, different sorts as well as its basis both legal and realistic, etc. It is believed that civil servants taking other jobs after executing their duties or holding more than one title is reasonable and necessary in some situations and one just cannot treat different situations same and denies them all.The essay make initial analysis about part-time jobs or holding more than one title:which ones can be chosen according to civil servants themselves;which ones must be forbidden;and which ones should go through certain processes, etc. Based on the analysis, making documents as its main ground while assisted by practice-situations learned from researches they made in a certain county in the middle of Hunan province, the author analyzed and commented the large number of government standardized documents related to regulate the civil servants taking part time jobs or holding more than one title separately according to different period since the establishment of PRC. Many drawbacks have been pointed out:low level of the related laws, low authority, policy oriented, being weak of the system, roughness of the system, used to rectify the phenomena in a certain time at certain areas as well as depend on administrative means;lack of inner motivation as well as pressure from outside;pay much attention to entity while ignore program and so on.These drawbacks make it different to regulate such phenomena;outcome of rectifying such phenomena cannot last long as well as high recrudescence always occurs.Thus the author believed that statutes in law must be set.Setting only of the attitude to forbid the phenomenon, principles like duty first, balancing of interest, avoiding confliction of interests, supervision and restraint over the use of power is not powerful enough.Regulate entity from examining and approving subject, investigating details;regulate processes from examining and approving process,dissenting process, and rejecting process;introduce arbitration of personnel disputes and supplementary civil action as remedial measure;make opening information of civil servants being pluralistic system, declaring civil servants’family financial situation system, and shifting the government functions as supporting measures and auxiliary systems to realize the comprehensive, reasonable, and effective statutes.更多还原