摘要(Abstract):
党章和党内法规制度化历史由来已久。但是,学术界缺乏对党内法规法治化进行制度和规范的实证性分析,经验研究比较薄弱,说服力不够充分。如果对党章与宪法的协调性、党内法规的"立法"、党员权利的保障、党的纪律及其实施程序规范制度化四个方面的历史演化文本与我国相关法律进行比较分析,可以发现党在不同的历史阶段逐步推进制度化、规范化和程序化建设的历史轨迹。党内法规法律理性化演进的逻辑表明,依规治党与依法治国的辩证统一是历史的、全面的,也是在均衡互动中演进和发展的。
关键词(KeyWords):
Abstract:
Keywords:
基金项目(Foundation): sponsored by the National Social Science Fund Major Program of 2015,entitled Research on the Strengthening of the Party Spirit and Strict Adherence to Party Disciplines and Regulations(2015YZD15)
作者(Author): 张小军;
Email:
参考文献(References):
- 1 Article 2 of the Rules on the Formation of Internal Regulations of the Communist Party of China of 2012.
- 2 XI JINPING, XI JINPING:THE GOVERNANCE OF CHINA(VOLUME II), at 151(Foreign Language Press, 2017).
- 3 LARRY C.BACKER,CONSTITUTIONALISM,‘THREE REPRESENTS’AND RULE OF LAW IN CHINA in TRANSFORMATION OF THE PARTY GOVERNANCE:OVERSEAS ACADEMICS ON THE DEVELOPMENT OF THECOMMUNIST PARTY OF CHINA,at 298(Lv Zengkui trans.,Central Compilation and Translation Press,2011).
- 4 RANDALL PEERENBOOM,CHINA’S LONG MARCH TOWARD RULE OF LAW,at 8(Cambridge University Press,2002).
- 5 LV XIAOBO,CADRES AND CORRUPTION:THE ORGANIZATIONAL INVOLUTION OF THE CHINESE COMMUNISTPARTY,at 22(Stanford University Press,2000).
- 6 DAVID SHAMBAUGH,CHINA’S COMMUNIST PARTY:ATROPHY AND ADAPTATION,at 6-7(Lv Zengkui&Wang Xinying trans.,Central Compilation and Translation Press,2011).
- 7 BRYAN S.TURNER,ON MAX WEBER in ACADEMICS AND POLITICS,at 179(Feng Keli trans.,SDX Joint Publishing Company,2013).
- 8 MAX WEBER,SOCIOLOGY OF LAW,at 216(Kang Le&Jian Huimei trans.,Guangxi Normal University Press,2005).
- 9 The definiteness and scientificity of law have long been under dispute.Although laws in China may not be completely definite and scientific,they are undoubtedly more precise compared with other social norms.Therefore,this article takes laws in China as the referent object in examining the history of the institutionalization of the regulations of the Communist Party of China.
- 10 In the Report on Revising the Constitution of the Communist Party of China,Liu Shaoqi pointed out that Party members should not only ‘abide by Party disciplines,but also strictly follow all laws and regulations of the revolutionary government’‘.Laws and regulations of the revolutionary government’here clearly includes‘government decrees’.See COMPILATION OF CONSTITUTIONS AND AMENDMENTS OF THE COMMUNIST PARTY OF CHINA,at 103(Xia Libiao ed.,Law Press,2016).
- 11 COMPILATION OF CONSTITUTIONS AND AMENDMENTS OF THE COMMUNIST PARTY OF CHINA,supra note 10,256.
- 12 The General Program of the Constitution of the Communist Party of China of 2017.
- 13 The Preamble of the Constitution of the People’s Republic of China in 2018.
- 14 Id.,article 5.
- 15 MAX WEBER,BASIC CONCEPTS IN SOCIOLOGY,at 71(Guangxi Normal University Press,2011).
- 16 SHU DEGENG,TRUST AND LEGALITY OF CHINA,in THE LONG MARCH OF DEMOCRACY:OVERSEAS SCHOLARS ON CHINA’S POLITICAL DEVELOPMENT,at 86(Central Compilation and Translation Press,2011).
- 17 JI WEIDONG,THE RELEVANCE OF LEGAL PROCEDURE:ANOTHER PERSPECTIVE ON THE DEVELOPMENT OF CHINA’S LEGAL SYSTEM,at 51(China Legal Publishing House,2004).
- 18 Supra note 1,article 16.
- 19 Id.,article 19.
- 20 Id.,paragraph 1 of article 22.
- 21 A law higher in the hierarchy repeals the lower one(lex superior derogat legi inferiori in Latin);a special law repeals a general law (lex specialis derogat legi generali in Latin,also known as the lex specialis principle),and a later law repeals an earlier law(lex posterior derogat priori in Latin)are frequently seen.Latin legal terms have a long history and contain common legal logic.See ZHENG YUBO,LEGAL MAXIMS,at 10-12(The Law Press,2007).
- 22 A GENERAL INTRODUCTION TO THE INTERNAL REGULATIONS OF THE COMMUNIST PARTY OF CHINA,at 236(Yin Xiaohu ed.,Peking University Press,2016).
- 23 Hua Chunyu&Sun Tiexiang,Providing Institutional Guarantee for the Exercise of Strict Self-Governance of the Communist Party of China,People’sDaily,April 19,2016.
- 24 SONG GONGDE,COMPREHENSIVELY PROMOTING THE SYSTEM CONSTRUCTION OF INTERNAL REGULATIONS OF THE COMMUNIST PARTY OF CHINA,at http://opinion.people.com.cn/n1/2018/0927/c1003-30315367.html(Last visited on February 14,2019).
- 25 RENMIN UNIVERSITY OF CHINA LEGAL DEVELOPMENT REPORT OF 2018:ASSESSING SATISFACTION WITH THE RULE OF LAW IN CHINA(2015-2017),at 191(Zhu Jingwen ed.,China Renmin University Press,2018).
- 26 RONALD DWORKIN,TAKING RIGHTS SERIOUSLY,at 270(Xin Chunying&Wu Yuzhang trans.,Encyclopedia of China Publishing House,1998).
- 27 Id.,269.
- 28 Article 3 of the Constitution of the Communist Party of China of the 7th CPC National Congress provides that‘all Party members shall enjoy the right to:First,participate in free and concrete discussion on questions concerning the implementation of Party policy at Party meetings and in Party newspapers and periodicals.Second,participate in voting and stand for election.Third,make suggestions or statements to a Party organization up to and including the Central Committee.Fourth,offer criticism at Party meetings of any Party member.’COMPILATION OF CONSTITUTIONS AND AMENDMENTS OF THE COMMUNIST PARTY OF CHINA,supra note 10,46.
- 29 COMPILATION OF CONSTITUTIONS AND AMENDMENTS OF THE COMMUNIST PARTY OF CHINA,supra note 10,104.
- 30 Id.,105.
- 31 Id.,194.
- 32 Id.,147.
- 33 Id.,244.
- 34 Id.,256.
- 35 Paragraph 2 of article 33 in the Constitution of the Communist Party of China states that:‘all citizens of the People’s Republic of China are equal before the law.’Paragraph 4 states that:‘every citizen enjoys the rights and at the same time must perform the duties prescribed by the Constitution and the law.’
- 36 Article 16 of the Regulation on the Investigation and Handling of Cases of 1987.
- 37 Id.,article 17.
- 38 Id.,article 18.
- 39 Id.,article 19.
- 40 XI JINPING,ZHIJIANG NEW OPINIONS:WE NEED NOT ONLY‘DEMOCRACY’,BUT ALSO‘CENTRALIZATION’,at 255(Zhejiang People’s Publishing House,2007).
- 41 COMPILATION OF CONSTITUTIONS AND AMENDMENTS OF THE COMMUNIST PARTY OF CHINA,supra note 10,29.
- 42 Id.,56.
- 43 Id.,135.
- 44 COMPILATION OF LITERATURE ON THE EFFORT OF THE COMMUNIST PARTY OF CHINA TO COMBAT CORRUPTION AND BUILD A CLEAN GOVERNMENT,at 16(Discipline Inspection and Supervision Research Institute,The Central Commission of the Communist Party of China for Discipline Inspection ed.,Central Party Literature Press,2002).
- 45 Id.,57.
- 46 A SELECTION OF IMPORTANT DOCUMENTS SINCE THE FOUNDING OF THE PEOPLE’S REPUBLIC OF CHINA,at 574 (Central Committee Party Literature Research Center of the Communist Party of China ed.,Central Party Literature Press,1997).
- 47 KARL MARX&FREDERICK ENGELS,VOLUME I,at 287(People’s Publishing House,1995).
- 48 JUSTICE WILLIAM O DOUGLAS’S COMMENT IN JOINT ANTI-FASCIST REFUGEE COMM.V.MCGRATH,in UNITED STATES SUPREME COURT REPORTS,at 858(The Lawyers Cooperative Publishing Company,1951).On the relevance of procedure to the modern society governed by the rule of law,see JI WEIDONG,THE RELEVANCE OF LEGAL PROCEDURE:A NEW PERSPECTIVE ON THE DEVELOPMENT OF RULE OF LAW IN CHINA,at 2-16(China Legal Publishing House,2004).
- 49 Ronald J.Allen,The Jurisprudential and Political Foundation of Criminal Procedure,1&2 Evidence Science 162(Zhang Baosheng et. al.trans.,2017).
- 50 THE CENTRAL COMMISSION OF THE COMMUNIST PARTY OF CHINA FOR DISCIPLINE INSPECTION DETAILED REGULATION ON THE COLLECTION,EVALUATION AND USE OF EVIDENCE IN HANDLING CASES OF VIOLATION OF DISCIPLINES BY PARTY MEMBERS,in COMPILATION OF SELECTED INTRAPARTY REGULATIONS OF THE COMMUNIST PARTY OF CHINA(1978-1996),at 620-624(Law Press,1996).
- 51 Article 31 of the Criminal Procedure Law of 1979.
- 52 Zhang Jun,Party Members Should Carefully Study and Apply the Two Regulations and Bear in Mind Party Regulations and Disciplines:Responds to Journalists’Questions on the Promulgation of the Newly Revised Standards of the Communist Party of China on Integrity and Self Discipline and Regulation of the Communist Party of China on Disciplinary Actions,20 China Discipline Inspection and Supervision 15(2015).
- 53 Every new rule ought to prescribe a form for future,not for past,acts(Nova Constitutio Futuris Formam Imponere Debet,Non Praeteritis)is a universal principle since the Roman law,but has assumed new aspects in modern world.The UN International Covenant on Civil and Political Rights stipulates,in paragraph 1 of article 15,that‘no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence,under national or international law,at the time when it was committed.Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.If,subsequent to the commission of the offence,the provision is made by law for the imposition of the lighter penalty,the offender shall benefit thereby.’The American Convention on Human Rights provides,in paragraphs 1 and 2 of article 9,the‘freedom from ex post facto laws’and that‘no one shall be convicted of any act or omission that did not constitute a criminal offense,under the applicable law,at the time it was committed.A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed.’‘If subsequent to the commission of the offense the law provides the imposition of a lighter punishment,the guilty person shall benefit therefrom.Therefore,international conventions generally follow the principle of Nova Constitutio Futuris Formam Imponere Debet,Non Praeteritis,as well as that of applying laws in favor of the offender.
- 54 XI JINPING’S EXCERPTS ON RULING THE PARTY COMPREHENSIVELY AND STRICTLY,at 114(Central Committee Party Literature Research Center of the Communist Party of China ed.,Central Party Literature Press,2016).
- 55 Id.
- 56 WORK REPORT SUBMITTED BY THE 18TH CENTRAL COMMISSION FOR DISCIPLINE INSPECTION TO THE 19TH NATIONAL CONGRESS OF THE COMMUNIST PARTY OF CHINA,at http://www.xinhuanet.com//politics/2017-10/29/c_ 1121873020.htm(Last visited on November 21,2018).
- 57 RENMIN UNIVERSITY OF CHINA LEGAL DEVELOPMENT REPORT OF 2018,supra note 25,305-306.