国家监察对象的认定：以监察权为进路的分析

Identification of State Supervision Objects:The Analysis in the Way of Supervision Power

关于国家监察对象,学界普遍持“公权力行为说”与“行为、身份折中说”的观点,通过认定行为的公共属性、国家财政供养的身份进行综合判断。然而这一逻辑进路并不能为国家监察对象的识别提供实质根据。相反,考察监察权的法理基础与运行逻辑,能够揭示监察对象的实质内涵。以国家职能实现的不同方式,结合监察权的作用限度,可得出监察对象的认定应当采取两种标准:其一,对承担统治管理职能的人员,应全部纳入监察范围;其二,对国有企业、公办事业单位的人员,应以“国有资产接触和职务”标准,将负有直接管理责任的人员,以及监督监管国有资产的人员纳入监察范围。

Regarding the objects of state supervision, the academic circles held the viewpoints of "public power behavior" and "behavior and identity compromise", and comprehensive judgment was made by identifying the public attributes of behavior and the state's financial support. However, this logical approach does not provide a substantial basis for the identification of national supervision objects. On the contrary, examining the legal basis and operational logic of the supervision power can reveal the substance of the objects of supervision. Taking into account different ways of achieving state functions and the limits of the role of supervision, two ways should be adopted for the identification of supervision objects. First, the personnel who assume the functions of ruling management should be all included in the scope of supervision. Second, for personnel of state-owned enterprises and public institutions, those who have direct management responsibilities and those who supervise and supervise state-owned assets should be included in the scope of supervision based on the criteria o“f contact and duties of state-owned assets”.