《政务处分法》的出台标志着我国监察体制改革在立法方面走出关键一步,研究政务处分的法律性质和救济路径极为重要。本文将概述我国公职人员政务处分救济制度,明晰政务处分救济等相关概念。监察体制改革后,我国公职人员纪律处分体制已经重构,由此前行政纪律处分与党内纪律处分构成的双重纪律处分制,发展为党纪处分、政务处分与狭义“处分”并行的惩戒制度。现行立法规定了复审、复核这一内部救济途径,以及相应的补偿、赔偿条款,并且赋予公职人员申请回避权等程序性权利。对于部分身份较为特殊的公职人员,还规定了特别处理程序。涉案公职人员如果不存在违法情形,需依照法律规定,对其进行澄清保护。但是,处分救济仍面临一系列现实问题,如内部救济途径单一、缺少独立执行机构、排斥司法诉讼途径等。当前,应当继续加强公职人员权利保障,保持执行机构独立属性,并考虑引入司法外部救济来解决难题。关于政务处分是否可诉,学界尚存在分歧。受特别权力关系说的影响,反对派认为,政务处分作为内部惩戒行为,在党政合署办公的体制下不具有可诉性。肯定派则从政务处分的外部法律性质、对特别关系权力说的突破、党政权力分别负责制、内部救济非终局性等方面试图论证政务处分具有可诉性。本文认为,应当肯定政务处分的可诉性。在实践中,可进一步完善内部救济途径和开辟外部救济途径。其中,内部救济途径包括:完善内部程序性规定、设立独立救济机构、确立监察赔偿制度。而基于政务处分的可诉性,还可引入外部司法救济。在穷尽内部救济的诉讼前提下,应将撤职、开除公职等对公职人员造成重大影响的处分行为纳入行政诉讼之中,规定以区县及以上监察委为被告的诉讼案件由中级法院进行受理等诉讼程序,以实现对公职人员的保障。且法院在审理涉及政务处分诉讼以及其他有关监察委的行政诉讼案件时应当“不受监察机关干预”。
The issue of the Law on Political Discipline marks a key step in the legislation of China's supervision system reform. Under the circumstances of comprehensive supervision covering all public officials, it is extremely important to study the legal nature and relief paths of political sanctions.Herein, the political sanctions relief system for public officials in China will be first clarified. After the reform of the supervision system, the disciplinary system for public officials in China has been reconstructed. The former dual disciplinary system consisting of administrative disciplinary punishment and party disciplinary punishment has been transformed into a disciplinary system in which party disciplinary punishment, administrative punishment and punishment are imposed in parallel. For administrative disciplinary actions, the current legislation provides internal remedies including review and recheck policies, as well as corresponding compensation and indemnification provisions. It also grants public officials a series of procedural rights such as the right to apply for recusal. For certain public officials with unusual identities, special handling procedures are also provided. Moreover, an innovative clarification and protection strategy has been designed for public officials with no violation of the law. However, the disciplinary remedies still face a series of practical problems, such as the limited internal remedy approach, the lack of an independent enforcement agency, and the exclusion of judicial litigation channels. Therefore, we should continue to strengthen the protection of public officials' rights, maintain the independency of executive agencies, and consider the introduction of judicial external remedies.Whether administrative sanctions are actionable is still hotly debated in the academic community. Influenced by the special power relationship theory, the oppositions believe that administrative sanctions as an internal disciplinary action does not have litigation under the system of joint of the party and government. The affirmative school, on the other hand, argues that the external legal nature of governmental discipline, the breakthrough of the special relationship power theory, the separate responsibility of the party and the government, and the non-finality of internal remedy renders administrative sanctions indictable. In this paper, we believe that the justiciability of administrative sanctions should be recognized.In practice, we can further improve the internal remedy and open up the external remedy. Specifically, the internal remedy includes the improvement of the internal procedural provisions, the establishment of independent relief agencies and the establishment of monitoring compensation system. Based on the justiciability of administrative sanctions, external judicial remedies can also be introduced. Under the premise of exhausting the internal remedy, the disciplinary actions that have significant impact on public officials such as dismissal and dismissal from public offices should be included in the administrative litigation, and the litigation cases in which the supervisory committee of the district, county or above is the defendant should be accepted by the intermediate court and other litigation procedures in order to achieve the protection of public officials. In addition, the courts should be free from the intervention of the supervisory organs when hearing administrative litigation cases involving administrative sanctions and other administrative litigation cases related to the supervisory committee.