What should we do to speed up the construction of a government ruled by law and strengthen administrative supervision?

With the deepening of reform and opening up, the continuous promotion of market economy and the gradual improvement of administrative legal supervision system, China's administrative supervision is political, economic, legal and social, with numerous institutions and China characteristics. Nevertheless, the problems in government management have long been the focus of social attention, and efforts have been made to strengthen governance, but no satisfactory results have been achieved? It not only affects the implementation of Scientific Outlook on Development, but also affects the harmonious progress of society. This forces us to seriously reflect and trace back to the source in order to put forward effective countermeasures.

First, the inertia of the traditional administrative system

After the founding of People's Republic of China (PRC), the government system in China was mainly influenced by the following factors: 1. Ideology-the theoretical conception and basic principles of Marxist socialist regime; 2. The model of Soviet government system; 3. Our Party's practical experience in the long-term revolutionary struggle; 4. China's traditional government system and political culture; 5. Target orientation and strategic choice of development. This makes our government system all-powerful. The external characteristics of this system are: (1) the government is always "online" and the social function is shrinking. The people rely entirely on government departments to handle social affairs; Social intermediary organizations are painted with the color of administrative organs and cannot develop normally. To some extent, they become an extension of the government rather than an intermediary between the government and society. Social self-restraint is weak, and the constraint on bad social behavior mainly depends on the government, while the social constraint on the government is weak. (2) Excessive expansion of government functions means that many things that should not be managed are not managed well. (3) The content of government functions is unreasonable. The economic function is too strong and the social function is too weak; Among the economic functions, the micro-management function is too strong and the macro-management function is too weak; The social control function is too strong and the social service function is too weak. (4) The organization is bloated, there are many departments, and there is no effective coordination. (5) The administrative organs have huge personnel and low quality. (6) Excessive concentration of administrative power.

Before the reform, the traditional administrative system played a positive role and should occupy a place in the history of administrative management. At the same time, this system was pregnant with many insurmountable internal contradictions when it was formed:

First, pursue political, economic, educational, cultural and social goals by a single administrative means. Administrative means is based on power, and its fundamental characteristics are hierarchical restraint, clear authority and corresponding obedience. In practice, the singularity of means shows that the rule of law is replaced by "rule of man", and economic means and economic leverage are ignored and excluded. In this way, there is a lack of internal adaptability between goals and means, and the administrative system is bound to lack vitality.

Secondly, the role conflict and dislocation of the government. For a long time, government departments have pursued what enterprises should pursue, leading to role conflicts: on the one hand, government departments, as owners of enterprises, should pursue economic benefits and profits; On the other hand, as owners of public power, they should promote public welfare and protect the rights and interests of the public as citizens and consumers. When the role of the owner overrides the role of the owner of public power, and the pursuit of economic benefits is at the expense of social benefits and consumer rights, it is the dislocation of the government's role.

The third is the requirement of unification. Almighty government pursues the social unity of will, action and goal. This kind of unification is not naturally formed, but is realized through the high degree of unity and coordination of various departments within the government. In fact, deep-seated differences and contradictions of interests make coordination and unification very difficult.

The fourth is the contradiction between the infinity of government responsibility and the finiteness of ability. The expansion of functions and powers leads to the expansion of government responsibilities. Is it the government's conscious initiative to assume too many functions and responsibilities, or the society's dependence on the government and unlimited expectations? In the final analysis, the two are mutually causal and complementary. However, what is opposite to the infinity of government responsibility is the finiteness of government ability. Due to objective conditions and resource constraints, it is difficult for the government to achieve the goals of all functional areas, so it can only make compromises and trade-offs.

The final result is that the internal contradiction of the traditional administrative system is the contradiction between ideal and reality. Our starting point is good, but it is difficult to reach our destination. With the deepening of reform and opening up, the transition from planned economy to market economy has been put on the agenda. In order to meet the needs of market economy, it is inevitable to change the administrative management system based on and serving the planned economy.

However, a government that has been in an environment of unlimited responsibility for a long time and concentrated the public's power resources is an uncompromising government. In the process of system transformation, the new system requires the government to be under comprehensive supervision, and the government affairs should be open and transparent. The government should let the people judge, abide by the rules, have a sense of service and accept comprehensive supervision. The "symptoms" are unaccustomed, unwilling, disgusted and even not allowed. First, some people and departments, especially leaders, have become opponents of the new system. Second, the supervision system and supervision system, which are still under construction or originally fragile, are irresistible and dare not stop. Third, supervision lacks power and authority. Interest and management, power and responsibility, service and supervision are always in fierce confrontation.

Second, the supervision function is weak in the process of the transformation of the old and new systems.

The government plays multiple roles in the process of system transformation, such as system designer, resource mobilizer, change promoter and interest coordinator, which brings many thorny contradictions: the government is both the subject and the object of reform; The goal of reform is to overcome social atrophy, but the growth of society depends on the self-restraint of the government; Market economy is essentially an "invisible hand", which is created by the "visible hand" of the government.

The lack of strong external binding force in the system transition has led to the old problems not being eliminated and the new problems being highlighted. The widespread power anomie is worrying, especially the high incidence of corruption, which affects the image of the government and the healthy development of society. It can be seen that we not only need reorganization and transformation, but also need to establish rules and regulations. More importantly, we need strong legal supervision. Regrettably, there are defects in the administrative legal supervision mechanism in China, which need to be adjusted and improved.

Third, the defects of China's administrative legal supervision mechanism

"Legal supervision mechanism" refers to the organic whole and operation system of legal supervision formed by power organs, procuratorial organs, judicial organs and administrative organs as the main body of supervision. Generally speaking, the defects of the current legal supervision mechanism in China can be summarized as follows:

(A) the overall power allocation of the legal supervision system-unreasonable

On the whole, the power contrast among authority supervision, internal supervision, judicial supervision and social supervision is unreasonable, and the system design is lacking. The lack of proper cooperation, communication and organic coordination among supervisory organs, or prevarication, humility or repeated supervision make it difficult to really implement the supervision work and affect the authority and effectiveness of administrative supervision. Whether it is supervision by the National People's Congress, supervision by political parties, supervision, audit supervision, etc. It is sound in form. In fact, due to the decentralization of supervision, the subject is restricted by many leaders in the subordinate relationship, and it is impossible to really form a joint force of supervision. The supervision power of judicial organs is weak, and this kind of post supervision mainly does some tinkering work. The content of supervision is relatively narrow, and abstract administrative acts are not accepted in administrative litigation in China, which damages the rights and interests of administrative counterparts to some extent. Although internal supervision has been paid attention to to to a certain extent, like professional supervision, namely administrative supervision and audit supervision, efficient and relatively independent supervision has not yet been established. As a relatively low-level department in the administrative system, professional supervision departments often have weak supervision, and there is also a phenomenon of weak supervision. Social supervision, apart from the efforts of CPC Central Commission for Discipline Inspection to investigate and deal with major cases, news supervision and people's supervision can't really play their due roles.

In China's current administrative legal supervision system, there has not been an orderly related structure between supervision institutions, which is mainly manifested in the following aspects: First, the supervision institutions overlap each other in function allocation, their responsibilities are unclear, and they lack communication and contact with each other in supervision operation. Second, the whole supervision system failed to form a system of "matching the main and auxiliary, ring closure", which led to many unreasonable phenomena. For example, the handling of some cross-regional, cross-industry, cross-departmental, multi-level and multi-component illegal public office cases, or several people "single-handedly guilty" at the same time, make the case-handling unit at a loss; Either push each other to "kick the ball" and delay for a long time; Otherwise, the authority and effectiveness of administrative supervision will be affected, and even quite a few administrative fields will be in a "supervision vacuum" state, such as the supervision of unconstitutional acts, the supervision of abstract administrative acts of administrative organs, the supervision of state acts, administrative discretionary acts and the final ruling acts of administrative organs. The regulatory scope, field and authority of each regulatory body are not clearly defined, and a sparse regulatory network has not been formed. There are many problems such as "virtual supervision" and "lack of supervision". Another example is that there is a serious lack of supervision over the power of the "number one" of the leading group, which actually means "I don't know what to do, and I don't know what to do", which seriously affects the effectiveness of supervision and administration.

(B) the authority of legal supervision-virtual.

The supervision of the power organs stays in the form, and there is no feasible supporting supervision system, so it is difficult to play the corresponding supervisory role. The Constitution gives it the power to supervise the work and laws of "one government, two houses". However, in practice, NPC only relies on the deliberation and inquiry during the NPC session, and the supervision of daily government actions is beyond its reach. There is always a feeling of being separated by a layer of skin. The absence of NPC's legal supervision leads to the weakening of the whole legal supervision mechanism. This ambiguity is manifested in: 1. Legislative supervision: (1) lack of constitutional review system; (2) The provisions of the law on the unconstitutional review procedure are too general and inconvenient to operate, which makes supervision a mere formality; (3) The coordination between the legislative supervision power of the administrative organs and the legislative supervision power of the NPC lacks practical institutional arrangements, which often damages the NPC's right to know, so there is no supervision. 2. Law enforcement supervision: (1) On the one hand, the legal supervision of NPC and the internal supervision of administrative organs overlap, on the other hand, the relationship between them is not legalized and institutionalized, and there is no channel for coordination and communication; (2) The lack of institutional arrangements for the supervision of non-legislative abstract administrative acts makes it difficult for NPC to give legislative supervision. Moreover, the law clearly stipulates that abstract administrative acts cannot be sued, which also excludes the supervision of judicial organs, which leads to the increasingly serious phenomenon that administrative organs use non-legislative abstract administrative acts to evade supervision and violate the law. (3) The open system of government affairs is not perfect, and the openness and transparency of the operation of administrative power are not enough, which affects NPC's right to know and the development of law enforcement supervision. 3. Judicial supervision: (1) The review of the legality of judicial interpretation lacks systematic arrangement; (2) The legal supervision authority and functions of 2)NPC and procuratorial organs are unclear; (3) There is no balance between 3)NPC's supervision and judicial independence, which is determined by system and law.

(C) legal supervision mechanism-lack of overall coordination

1. vertically, the supervision of the people's congress, as the highest legal effect and the highest level of supervision, is not clearly divided from the legal supervision function of the procuratorial organs, and the administrative organs overlap with the power organs, lacking institutionalized communication, cooperation and control methods with other state organs in legal supervision. Therefore, the supervision of the NPC is often limited by manpower, material resources and information, and it is difficult to achieve practical results. 2. Horizontally, the state organs lack a coordination system in legal supervision, the supervision relationship between them is not smooth, and the power allocation is unbalanced. For example, procuratorial organs should not only exercise the functions of investigation, arrest, examination and prosecution, but also supervise the judicial activities of public security organs and judicial organs, and the means of checks and balances between public security organs and judicial organs are obviously insufficient. Moreover, the financial power and personnel power of judicial organs can hardly play a supervisory role under the system of local party and government leadership and management. 3. From the inside out, internal and external supervision is inverted. As far as administrative organs and procuratorial organs are concerned, their supervision should be mainly external supervision, but the current system focuses on establishing their internal supervision system, while the establishment of their external supervision system is relatively weak. This has formed the status quo that administrative organs and procuratorial organs mainly focus on their internal supervision. However, it is difficult to implement effective supervision because the subject of their internal supervision is subject to the object of supervision.

Unclear legal supervision functions, overlapping supervision functions, poor communication and coordination control channels, left and right disharmony, putting the cart before the horse inside and outside, make China's legal supervision system lack of order and unity, lack of systematic coordination, and relevant state organs are not closely linked in legal supervision, rubbing against each other and restricting each other, which makes it difficult for the whole national legal supervision mechanism to play its due role.

(D) the subject of supervision-lack of independence

On the surface, the supervision of power organs is very independent, but in fact, it is still troubled by some factors, so it can't really exercise its supervision independently. At ordinary times, we mainly rely on NPC meetings and post supervision of NPC Standing Committee. Due to the collective leadership system, the administrative organs can not effectively exercise the powers of impeachment, recall and inquiry, so the supervision work can not be implemented to people, which is feasible.

Although both the Constitution and the procedural law stipulate that the judiciary independently exercises judicial power. But in fact, judicial independence has not been realized, and the people, money and things of the judicial organs are not independent of the government, resulting in judicial dependence. Judicial power, as the last relief force of society and a symbol of fairness and justice, is difficult to gain people's full trust.

Administrative internal supervision lacks independence in form and content. Due to the subordinate relationship between higher and lower levels, general supervision is weak. The supervision between government functional departments is the supervision between "colleagues", which is often hello and I am good, but it is very difficult to be serious. Although there are special laws and regulations on special supervision, the personnel of the supervision department are subordinate to the administrative system, and under the dual leadership, the property is provided by the government. In fact, there is a lack of relative independence and supervision.

In social supervision, the news media supervised by public opinion are mostly controlled by and closely related to the government. Although some radio programs have played a certain supervisory role, from top to bottom, extensive and seamless news supervision has not yet been formed, especially the long-term propaganda mode of reporting good news without reporting bad news, which makes critical reports from secondary to secondary, and the role of the times and people's spokesmen is difficult to play.

As the largest and ubiquitous supervision force, citizens have extremely weak functions, poor supervision channels and low enthusiasm, and it is difficult to form a joint force.

Legal supervision-lack of rules

1. Lack of substantive rules of legal supervision. There are many deficiencies in the current substantive rules of legal supervision in China, which are mainly reflected in the perfection and refinement of various powers of legal supervision and the corresponding obligations and responsibilities of the supervised objects. The reason is that although the Constitution and laws stipulate the basic functions and powers of the subject of legal supervision, the fundamental law and the basic law are limited by their principles and generality, so it is impossible to make specific and detailed provisions. As for the obligations and responsibilities of the object of legal supervision, on the one hand, due to the incompleteness and concreteness of the subject of legal supervision, the corresponding obligations and responsibilities of the object of legal supervision are also missing. On the other hand, although the law gives the subject of legal supervision certain supervision power, due to various considerations, it does not stipulate the corresponding obligations and responsibilities of the object of legal supervision, which leads to the lack of rigidity and authority of supervision.

2. Lack of procedural rules of legal supervision. A complete legal supervision procedure is an important symbol of modern rule of law. However, in China, the lack of procedural rules of legal supervision is particularly prominent. For example, there is still no special legislation on NPC legal supervision procedures. Even though 1993 promulgated "Several Provisions of NPC Standing Committee on Strengthening Inspection and Supervision of Law Enforcement", it is only a principled provision, and there is no systematic and step-by-step procedural arrangement, nor does it clearly stipulate the procedural rights and obligations of participants. The legal supervision of NPC is basically in a state without legal basis. It is the lack of procedures that makes it difficult to start or exercise all kinds of supervision rights, or it is artificially converted after exercise.

(VI) The object of supervision-lack of checks and balances

1. The objects of administrative legal supervision are not balanced. Legally speaking, the supervision of administrative legal system should act on the object in a balanced way, but in our country, there is often more supervision over administrative staff and less supervision over administrative organs; There is more supervision over ordinary civil servants and less supervision over middle and senior leading cadres. The focus of supervision is to "correct mistakes" and ignore or even give up the work of "nip in the bud". As a result, the main body of supervision is caught in the dilemma of "treating the headache and treating the foot pain", and the way of supervision is getting narrower and narrower. There are many people who abuse power in supervision, but few people neglect their duties and do nothing; There is more top-down supervision and less bottom-up supervision; There are more internal supervision and less external supervision, especially the supervision of the "top leaders" is almost "missing supervision", and there is no supervision mechanism focusing on leading cadres.

2. The supervision means and methods are not effective. Disappointingly, many supervisors did not go deep into the interior, make superficial articles, go through the motions, or even put on a show. Waiting for people to come to the door to reflect more problems and less active supervision. In terms of consulting means and control means, advanced scientific means are not adopted; In the way of supervision, conventional supervision is often used, and special supervision, comprehensive supervision and temporary supervision are not fully used; In the process of supervision, the transportation, communication equipment, investigation and sampling tools, law enforcement means and file management facilities of the supervision department are relatively backward, which makes it difficult to carry out supervision work.

3. The supervision procedure lacks transparency and can't fully protect the society's right to know. The supervision department's supervision of administration lacks specific implementation rules and operating procedures in legislation, which fails to form institutionalization and concretization. First, some important norms such as administrative procedure law, administrative behavior supervision law and people's supervision law have not been promulgated, which makes some major supervision activities lack legal basis; Second, some existing regulatory rules are worded in general terms, lacking clear standards and operational rules, which makes it difficult for the regulatory subject to accurately judge and stop and correct the deviant and illegal acts of the regulated object in time. The degree of public supervision is also low, and "black box operation" is often used.

Fourth, the concrete conception of perfecting the supervision mechanism of administrative legal system in China

(A) the idea of legal supervision reconfiguration

There are many reasons for the above defects in China's legal supervision mechanism, but one of the main reasons is that the allocation of legal supervision power is unscientific. Based on this, through the reconfiguration of legal supervision power, a legal supervision mechanism with clear subject, clear authority and overall coordination is constructed to overcome the defects of the existing legal supervision mechanism. The author agrees with the suggestion put forward by some scholars to reconfigure the legal supervision power: set up a legal supervision court to exercise the legal supervision power exclusively. The legal supervision office, the people's government, the people's court and the people's procuratorate are parallel state organs, all of which are responsible to the National People's Congress and report their work. The National People's Congress entrusts its legal supervision power to the Legal Supervision Institute, which is the state's legal supervision organ. The supervision of the National People's Congress focuses on work supervision, and the legal supervision office specifically conducts legal supervision over other state organs.

(two) the overall coordination of legal supervision mechanism. A scientific and reasonable operation mechanism of legal supervision not only needs a reasonable system design, rationalizes various relations and realizes benign operation, but also needs to build relevant measures at the operational level to cooperate with each other to form a dynamic system.

China's administrative legal supervision needs to be redesigned from the system. The specific measures are: 1. Give full play to the supervisory role of the NPC. According to China's Constitution, the supervision of the power organs over the administrative organs is the fundamental supervision. In view of the lack of specific means of operation and the supervision power of power organs in China, it is suggested that the Ombudsman system and administrative supervision Committee of the National People's Congress should be established by learning from the successful Ombudsman model of foreign countries and combining with the actual situation in China.

The Ombudsman system of power organs originated in Sweden, and then Finland, Britain, Canada, Australia, France, Norway and other countries followed suit and achieved good results. In most countries, except for the instructions of the parliament, the parliamentary commissioners are independent of the parliament, exercise their functions and powers independently and act as representatives of the parliament. For example, article 1 of the Norwegian Parliamentary Administrative Ombudsman Act provides that the Parliament may issue general instructions on the duties of the Commissioner. In addition to the instructions of the parliament, the commissioners are independent of the parliament and perform their duties independently, so as to determine their relationship with the parliament and their independent and supreme status, and to clarify their working methods, selection of commissioners, treatment of commissioners and so on.

According to China's Constitution, the administrative organs are produced by the National People's Congress, supervised by it and responsible for it. The National People's Congress conducted supervision such as listening to government reports, inquiries and comments, but the effect was not satisfactory. For example, since 1998, the State Council has sent inspectors to hundreds of large state-owned enterprises, which can be regarded as the embryonic form of the Commissioner system. Whether China should try to set up an Ombudsman in the National People's Congress to achieve effective supervision and better reflect the spirit and political system established by the Constitution. Judging from the actual situation in China, the functions of the Ombudsman include: the first Commissioner is the administrative Ombudsman; The second Commissioner is the Ombudsman of the Ministry of Public Safety and Law; The third Commissioner is an inspector of the armed forces; The fourth Commissioner is an inspector of enterprises and institutions. Respectively supervise public power in different fields. Among them, the first Commissioner should be the most important content in this system. Legislation should clearly stipulate the emergence, scope of power, supervision procedures, supervision responsibilities and rights protection of commissioners. In China, the Ombudsman of the National People's Congress should belong to the daily work supervision of the Standing Committee of the National People's Congress, but only be responsible and report to the National People's Congress. The Ombudsman of the National People's Congress has only one rank and organization, and there is no central or local system. The supervision of NPC inspectors mainly focuses on the administrative system. We should strengthen the power of NPC Ombudsman to supervise, judge and handle cases, so as to greatly improve its authority and seriousness. The supervisory power of the Ombudsman of the National People's Congress should at least include the right of notification, the right of suggestion and the right of disposal, so that it can be sent to the judicial organs for prosecution and discussion. As a kind of authoritative supervision with high status, the Ombudsman system of the National People's Congress helps to break the interference of local protectionism and other powers on supervision, and also embodies the principle of streamlined and efficient supervision, which is an important supplement to the supervision system.

(3) Expand the scope of supervision. Gradually put all abstract administrative acts under all-round supervision, and expand the scope of administrative reconsideration and administrative litigation to all abstract administrative acts. While strengthening the supervision of restraint and discretionary administrative actions, we should also strengthen the supervision of discretionary administrative actions, which is also the concrete embodiment of the theory of combining rule of law with rule of virtue in administrative legal supervision. At the same time, it is necessary to focus on strengthening the supervision system for administrative organs, senior and middle-level leading cadres, especially the "top leaders", dereliction of duty, lower-level administrative organs and civil servants, as well as the mutual supervision system for civil servants who are not affiliated with administrative organs at the same level, and adjust the supervision mechanism so as to achieve a balanced supervision as far as possible while highlighting key points.

(4) Establish extensive and universal general administrative supervision. General administrative supervision, that is, the legal supervision of higher and lower governments. The government's legal supervision is the compulsory supervision of all administrative actions before, during and after, which can be realized through the supervision of the head, the supervision of the higher and lower governments and the supervision of various government departments. Post supervision has administrative compulsion and authority, which is realized through the supervision of the top leaders, the governments at higher and lower levels and the supervision of various government departments. In order to strengthen the sense of responsibility of supervision, we can establish the system of making government affairs public, the system of reporting major events, the responsibility system of administrative supervision and so on. If there is a fault in supervision, it should be dealt with administratively.

(5) Improve administrative supervision and audit supervision. China's administrative supervision and audit supervision have been gradually institutionalized in legislation, but their supervisory status needs to be improved. At present, these two departments are placed within the government, and people, money, goods and rights are under the control of the government at the same level. Therefore, it is difficult to effectively supervise the cases in this region and this department, and it is even more impossible to supervise the responsible persons in their respective regions, and they cannot really be in a supervisory position. Administrative supervision and audit supervision need to be relatively independent in practice. Only in this way can real supervision be implemented. In view of China's situation, we can transfer the audit institution to the National People's Congress for establishment, learn from the institutional setup of the Hong Kong Independent Commission Against Corruption, be only responsible to the National People's Congress, truly achieve audit independence, and give full play to the important role of auditing in preventing official corruption. At the same time, the administrative supervision and audit supervision departments should clearly define the power and responsibility of supervision and establish a supervision responsibility system. It is also necessary to strengthen administrative supervision and audit supervision procedures. The implementation of supervision shall be carried out in accordance with the authority and procedures prescribed by law, and supervision shall not be carried out beyond the authority and scope.

(6) News supervision legislation should be put on the agenda. As the fourth power independent of legislation, administration and justice, news supervision has the advantages of universality, openness, authority, timeliness, serious consequences and smooth channels, and is a powerful and flexible supervision force. Of course, the authenticity and objectivity of news should be monitored to ensure that news has laws to follow and bold, objective and fair supervision.

(seven) the establishment of citizen supervision channels. Under the condition of administrative openness and administrative hearing, the system of citizens' letters and visits, reporting and exposure should be improved in time, which makes it difficult to effectively exercise citizens' rights of supervision, criticism, suggestion, appeal and exposure stipulated in the Constitution. Matching with the above-mentioned supervision mechanism, in the specific operation, we should also establish a scientific and reasonable supervision personnel selection mechanism and an incentive mechanism for the supervision mechanism. A supervisor shall have strict conditions, special knowledge, experience and moral character, and perform supervisory duties full-time after being elected and recommended, and shall not hold other positions concurrently. At the same time, the salary, bonus, pension and family safety of supervisors should be effectively guaranteed.

In a word, perfecting the supervision system of administrative legal system is a complex systematic project, and we still need to do a lot of work. Through long-term unremitting efforts, China's administrative legal supervision system will be further improved, and the democratic, legal, efficient and clean government that people expect to establish will also be realized.