党政联合行为的法治化困境及其回应进路

The Legalization Dilemma of Party-government Joint Action and Its Response Approach

党政联合行为是党通过依法执政实现依法行政在行为法层面的重要体现,是中国特有的政治现象。党政联合行为是指,针对政治问题(重大问题),党的机关和行政机关共同开展行为,以行政机关的名义(经党委批准同意)或者党政机关双方的名义对外作出的共同行为。从概念上来看,党政联合行为包含两个系统的行为主体,在性质、效力上均具有一定的复合性,因而能够实现复杂的治理目标、简化政府职能。但与此同时,党政联合行为还存在党政决策程序分化、法律责任分离以及司法救济难等法治化困境,同时反映了依法治国与依规治党在具体实施层面还存在不协调、不一致的现象。对此,应当建立健全党委决策配套制度、加强依法执政责任机制建设,并以实质化审查思路构建权利救济体系,从而科学区分党政机关在行政过程中的具体责任。

The joint action of the Party and the government is an important manifestation of the party’s implementation of law-based administration at the level of behavioral law. It is a unique political phenomenon in China. The joint action of the Party and the government refers to the joint activities of the Party’s organs and administrative organs in the name of the administrative organs( approved by CPC committee) or in the name of both the Party and government organs in response to political issues( major issues). From a conceptual point of view, the joint action of the Party and the government includes the action subjects of the two systems, which are overlapping with each other in terms of nature and effectiveness. Together they can achieve complicated governance goals and streamline government functions. However, at the same time, the joint action of the Party and the government is faced with the dilemma of the rule of law, such as the decision-making process difference of the Party and government, separation of legal responsibilities and the difficulty in judicial relief. It suggests that there are still uncoordination and inconsistence when it comes to implementing law-based governance and rule-based governance of the Party. To address this problem, we propose to establish and improve the decision-making supporting system of the CPC committee, strengthen the construction of the responsibility mechanism of law-based governance, and construct a proper right relief system with the approach of substantive examination, so as to clearly distinguish specific responsibilities of the Party and government organs in the administrative process.