党政联合发文的司法审查困境及其因应

The Dilemma of Judicial Review of Documents Jointly Issued by the Party and Government and Its Countermeasures

党政联合发文属于一种法律现象,并有其特殊的法定基本属性,但司法审查中发文的主体认定、内容审查、程序考察困境导致相关司法案件的驳回率十分高,发文有脱离司法审查的趋向。为避免人权保障的失位,人民法院对党政联合发文进行司法审查是必要的。党政联合发文可被划分为“绝对党务型”“绝对行政型”“相对党务与行政型”三类。在类型化的党政联合发文体系下,人民法院可联合党内规范的备案审查机关作差别化与精准化的司法处理,从而实现现行党内规范与法律规范体制下司法审查困境之逻辑应对。

Jointly issued documents by the party and government are a legal phenomenon and has its specific statutory basic attributes.However,due to the difficulties in subject identification,content review,and procedural examination of documents issued in judicial review,the rejection rate of related judicial cases is very high,which has a tendency to break away from judical review.In order to avoid the loss of human rights protection,it is necessary for the people’s court to conduct judicial review of the party and government jointly issued documents.Jointly issued documents by the party and government can be divided into three categories:“absolute party affairs”,“absolute administration”,and“relative party affairs and administration”.Under the typified party-government joint document system,the people’s court can cooperate with the party’s standardized filing review organs to conduct differentiated and precise judicial processing,so as to realize the logical response of judicial review under the current party’s norms and legal norms.