政府投资项目两审并存的法律逻辑与制度替代

The Legal Logic and Replacement for the Twice Administrative Reviews on the Government-Invested Projects

政府投资项目使用财政性资金,其项目实施却依赖于发承包双方等市场主体的广泛参与,项目最终价格的认定成为政府和市场主体之间博弈的关键。长期以来政府投资项目的行政监管形成了财政评审与审计监督分置并存的格局,市场主体和政府治理带来严重问题,引发新一轮工程款拖欠。财政评审与审计监督均为行政系统内部的行政审查,监管对象和审查重点重合,两审并存的法律逻辑缺乏理论支撑。两审并存的核心问题,一方面是财审在监管实践中的强大效力与法律地位不足,另一方面是审计的监督错位与事实上的力有不逮。为克服两审并存的弊端,各地进行了不同探索,境外相关制度设计也提供了有益借鉴。两审重置应在尊重市场、效率优先和权力制衡的理念下,尊重和回归审计的监督属性,确立财政投资评审权,明确财政投资评审结论的法定性、权威性、共享性。

The government-invested projects are operated by the contracting parties with the fiscal funds. The final price is the key to the game between the government and the contract parties. For a long time, there are twice administra- tive reviews on the government-invested projects. One is the review from the fiscal department, the other is from the au- diting department. Twice reviews have brought serious problems to the parites and the government. Both of the reviews from the fiscal and auditing department are the administrative reviews within the same contents and the points. The coexistence of them are lack of theoretical support. On the one hand, the fiscal review is powerful and its legal status is poor; on the other hand ,the auditing supervision is dislocation and incompetent. In order to overcome the shortcomings, differ- ent ways have been tried and the foreign countries have given us many suggestions. We should respect the market, give the priority to efficiency, check and balance the power. So the auditing review should be only the supervision and the right of the fiscal review should be established. The fiscal reviews should be officinal, significant and can be shared.