论党内法规的法源属性

On Party Regulations as a Kind of Legal Sources

关于党内法规的性质,目前有五种不同的观点。这五种观点均存在短板。党内法规具有强制力,不属于软法的范畴;党内法规与国家法律的根本区别在于制裁方式不同;党内法规是"实定的",无法进行法和法律的区分;平行说和三种关系说囿于揭示党内法规和国家法律的不同,对两者的联系则理论立基不足。党内法规因具有抽象性和普遍性,可以作为实质意义的法律,但鉴于我国并不区分形式意义的法律与实质意义的法律,因此党内法规更多是作为一种法源。党内法规具备了成为法源的可能。首先,党内法规是依照一定的党内民主程序产生的;其次,党内法规在司法实践中被一些法院在裁判中适用。党内法规主要对党员产生内部效力,但有时会对非党员产生外部效力。

There are currently five different views on the nature of Party regulations. These five viewpoints all have shortcomings. The inner-Party regulations are compulsory and do not belong to the category of soft law. Meanwhile, the fundamental difference between the inner-Party regulations and national laws lies in the different sanctions. The distinction between relevant laws and laws also cannot be applied to inner-Party regulations, because inner-Party regulations are tangible, different from the ultra-realistic law. Although the theory of parallelism and the theory of three kinds of relations admit that Party regulations are different from the national laws, they fail to reveal the connection between the two in theory. Because of its abstractness and universal nature, the inner-Party regulations can be regarded as substantive laws. However, since China does not distinguish between the formal meaning of the law and the substantive meaning of the law, the inner-Party regulations are more of a source of law. The inner-Party regulations have the potential to become a source of law. First of all, the inner-Party regulations are produced in accordance with certain democratic procedures;secondly, judging from our judicial practice, the inner-Party regulations are applied by some courts in judgments. The regulations within the Party mainly have internal validity to Party members, but sometimes have external validity on non-Party members.