论行政领导人行政责任的准确认定

On Precise Ascertainment of Administrative Leaderships' Administrative Responsibility

领导责任是领导人实施领导行为时应当承担责任形式的总称,在具体认定时可细分为非法律责任(即政治责任)和法律责任(可划分为行政责任、民事责任和刑事责任)。就行政领导人而言,是否要承担行政责任的关键在于有无实施违反行政领导职责的行为。行政领导职责的表现形式虽然纷繁复杂,却总以利益的妥善衡量、资源的合理分配、程序的适当关注和组织的正常运作等为依托,其实质是行政裁量权的运作。因此,对行政领导人行政责任的认定,必须以违反行政领导职责的责任行为为标准,正确划分合理裁量行为与违法行为的界限,依此方能作出准确的处理。

Leadership responsibility is a general term for all forms of responsibilities a leader should take in his execution of leadership duties. It can be categorized into two forms: non-legal responsibility (that is, political responsibility), which is a manifestation of being responsible for one's political activity against public will, and legal responsibility, which can be classified into administrative responsibility, civil responsibility, and criminal responsibility, in accordance with the nature of illegal activities. Whether an administrative leader should take administrative responsibility depends on whether his activities run counter to administrative leadership duties. These duties, in real situations, largely originate from self-prescribed administrative rules and regulations and administrative responsibility pledges by various departments, in addition to norms of the constitution, laws, statutes, and provisions. Although manifested in a variety of forms, they generally rely on appropriate balance of interests, equitable distribution of resources, proper concern for procedures, and regular operation of organizations, with the implementation of administrative discretion as its nature. Therefore, leaders' administrative responsibility must be measured by the standard of activities that go against administrative leadership duties, and by drawing a correct line between appropriate discretion activities and illegal activities. Accordingly, illegal administrative leadership activities can be further categorized into two forms: abuse of and negligence of exercising administrative leadership. The former can be further specified in five aspects: the purpose of carrying out administrative leadership activities runs counter to the legislative intention of empowering administrative leadership duties; the implementation of administrative leadership activities fails to take relevant interests into full consideration; the implementation is a move of shifting administrative leadership duties; the executed administrative leadership activities go against the principle of proportionality in administrative law; and the implementation of administrative leadership activities violates the principle of equal treatment. The latter includes the empowering of discretion to a third party, the belief of non-discretion, the inappropriate restraint of policies, and the inappropriate restraint of orders from above, etc.