对党内法规效力外溢的省思与回应

Reflection and Response to the Spillover Effectiveness of Inner-Party Laws and Regulations

狭义上的"党内法规效力"是指党内法规在规范党的领导和党的建设活动中的以党的纪律为保障的强制约束力。党内法规规范党的领导活动似乎不可避免地会作出关涉非党主体以及党外事务的明文规定。但这些明文规定所产生的事实效力不能也不应是党内法规以党的纪律为保障的强制约束力的直接外溢,故不能将其称为真正意义上的党内法规效力外溢。且这些明文规定所产生的事实效力应当经由国家法律与党内法规的衔接和协调来进一步承接,以赋予其正当性。而规范党的领导活动的党内法规在实施过程中存在间接调整非党主体以及党外事务并产生间接效力之可能。这种间接效力是党内法规以党的纪律为保障的强制约束力的间接外溢,党内法规效力本身即起到了传导中介的作用,故可以将其称之为真正意义上的党内法规效力外溢。对于党政联合制定的党内法规而言,其性质界定关系到如何理解其效力。制度规范层面将党政联合制定党内法规纳入调整范围无异于承认或者默认其效力可以外溢,是党内法规效力外溢的载体。但这种性质界定面临理论与实践困境,需要学术界进一步深入研究。

The"effectiveness of inner-Party laws and regulations"in the narrow sense refers to the compulsory binding force guaranteed by the Party discipline in regulating the Party’s leadership and building activities.It seems inevitable that inner-Party laws and regulations about Party’s leadership activities will make explicit provisions concerning non-Party subjects and non-Party affairs.However,the factual effectiveness of these explicit provisions can’t and shouldn’t be the direct spillover of the compulsory binding force guaranteed by the Party discipline.So it can’t be called as the spillover effectiveness of inner-Party laws and regulations in the true sense.Furthermore,the factual effectiveness of these explicit provisions should be inherited through the convergence and coordination of national laws and Party regulations to give them legitimacy.It is very likely that inner-Party laws and regulations about Party’s leadership activities will adjust non-Party subjects and nonparty affairs indirectly and produce indirect effectiveness in the process of implement.This kind of indirect effectiveness is the indirect spillover of the compulsory binding force guaranteed by the Party discipline,and the effectiveness itself plays the role of transmission and intermediary.So it can be called as the spillover effectiveness of inner-Party laws and regulations in the true sense.As far as inner-Party laws and regulations jointly issued by the Party and the government are concerned,the definition of their nature is related to how to understand their effectiveness.At the level of institutional norms,the inclusion of inner-Party laws and regulations jointly issued by the Party and the government into the scope of adjustment is equivalent to admitting or acquiescing that the effectiveness of inner-Party laws and regulations can spill over,and it is the carrier of the spillover effectiveness of inner-Party laws and regulations.However,this kind of definition faces theoretical and practical dilemma and requires further research in the academic circle.