功能适当原则下政务处分与行政性处分的界分——基于《政务处分法》第3条展开

The Distinction Between Administrative Discipline for Public Officials and Administrative Sanctions under the Principle of Functional Propriety:Based on Article 3 of The Law of the People’s Republic of China on Administrative Discipline for Public Officia

《政务处分法》以干部管理权限作为界分监察机关的政务处分和任免机关、单位的行政性处分的标准存在规范性不足。从权力配置的角度,以公职人员的违法行为为标准对政务处分和行政性处分进行界分是一条可行的进路。政务处分权和行政性处分权的界分应尊重各自的核心领域以及处分机关的功能优势。据此,对公职人员的违法行为进行分类:将公职人员违反廉洁义务、忠诚义务的行为纳入政务处分权的范围;将公职人员违反专业规范要求、服从义务的行为纳入行政性处分权的范围;监察机关和任免机关、单位均可对公职人员违反形象要求的行为进行处分。

There is a normative deficiency in The Law of the People’s Republic of China on Administrative Discipline for Public Officials,which uses cadre management authority as a criterion for distinguishing between administrative discipline for public officials by the supervisory authorities and administrative sanctions by organs and units.From the perspective of the allocation of power,it is a feasible wayto distinguish between administrative discipline for public officials and administrative sanctions on the basis of the offense committed by the public official.The distinction between them lies in the fact that they should respect the respective“core areas”and the functional strengths of the sanctioning authority.Accordingly,public officials’violations should be classified as follows:violations of the duty of integrity and loyalty by public officials should be included in the scope of administrative discipline for public officials;violations of the requirements of professional norms and the duty of obedience by public officials should be included in the scope of administrative sanctions;violations ofrequirements by public officials can be sanctioned by both the supervisory authorities and the appointing and dismissing authorities and units.