审计处理处罚救济中的财政收支与财务收支之区分:现实困境与优化路径

The Distinction between Fiscal Revenue and Expenditure and Financial Revenue and Expenditure in Audit Punishment Remedy:Realistic Dilemma and Optimization Path

从《中华人民共和国审计法》(2006)开始,相关法律法规从提高审计处理处罚救济的效率出发,将审计处理处罚的标的区分为财政收支和财务收支,把财政收支作为内部行政行为,财务收支作为外部行政行为,分别实施不同的救济方式。但是,这种救济制度在实践操作上和理论逻辑上都存在一些难以解决的问题,解决这种困境的路径有两个:路径之一是按审计处理处罚的客体来区分处理处罚行为,将政府及其部门的处理处罚作为内部行政行为,将组织单位的处理处罚作为外部行政行为;路径之二是不再将审计处理处罚区分为内部行政行为和外部行政行为,由对处理处罚决定不服的审计客体自己选择救济方式。在修订《审计法实施条例》时可以直接按审计客体来区分审计处理处罚救济措施,或者淡化财政收支和财务收支的划分,由审计客体自行选择救济方式。

Since the Audit Law of the People's Republic of China in 2006,relevant laws and regulations have been distinguishing the subject of audit punishment into fiscal revenue and expenditure and financial revenue and expenditure,the former one as an internal administrative act while the latter one an external one,implementing different remedy methods.However,this remedy system has some problems that are difficult to solve in practice and theoretical logic.There are two ways to solve this dilemma,one is to distinguish the audit punishment according to the object,the punishment for the government and its departments as an internal administrative act,and the punishment for the organizational unit as an external administrative act;The second path is to no longer distinguish audit punishment into internal administrative acts and external administrative acts and leave it to the object of audit punishment that are dissatisfied with the punishment decisions to choose their own remedy.In the future revision of the implementation regulations of the Audit Law,we can directly distinguish the remedy measures of audit punishment according to the audit object,or dilute the division of fiscal revenue and expenditure and financial revenue and expenditure,and let the audit object choose the remedy method.