美国行政裁决中的职能分离制度研究
发布时间：2018-07-21 16:24
【摘要】：职能分离是美国行政裁决中的一项重要制度。该制度的核心是禁止行政机构在裁决活动中追诉职能和裁决职能的合并,追诉人员不得以任何方式影响裁决人员。其主要价值在于制约权力,保证行政决定公正,提高政府公信力。我国有关职能分离的理论研究和实务尝试较少,在我国政府公信力低的背景下,对该制度的研究十分重要。 20世纪初,美国各界对职能分离的探讨开始增多。美国司法界没能对职能的分离形成一致认识。美国行政界在30年代到40年代,对有关职能分离问题的研究逐步体系化和精细化,支持职能分离成为美国行政界的主流观点。行政界的态度演化为两个派别分别支持内部分离和完全分离。 内部分离以司法部长委员会报告多数派为代表,主张通过在机构内的安排布置来使裁决职能免受其他与之不相协调的职能的干扰。1946年联邦行政程序法采纳了该模式,使之成为美国绝大部分行政机构的职能分离模式。依其规定,职能分离适用于“依法律规定必须根据机关的听证记录作出裁决”的案件,裁决人员不得向任何人或任何当事人就所争执的事实征求意见,调查和追诉人员不得参与该案或与该案有实际的联系的案件的裁决。但在理解该规定时应以国会立法目的作为出发点。在确定职能分离的适用范围时应主要考虑职能分离是否必要,“调查”是指与追诉有关的调查活动,“追诉”应当被广义的解释为在包含控诉因素的程序当中的辩护行为。 完全分离主张建立两个完全独立的机关分别负责调查追诉职能和裁决职能。1947年塔夫脱-哈特利法案为国家劳资关系委员会选择了该模式。该模式与内部分离的制度差别在于调查和追诉机构与裁决机构在人事上相互独立、在行动上互不干扰,但对外仍是统一的机构。该模式的形成有特殊的背景。其成因是公众对原有分离模式的不信任,以及参众两院在立法过程中的折中。该模式在运行中受到较大质疑,但是其提高公众信心的价值始终受到肯定。随着时间的推移矛盾和问题逐渐缓和,该模式得以延用。 内部分离和完全分离的差别在于关注点不同,前者在于关注行政公正的同时也关注效率和经济的问题,后者以行政公正作为首要关注点。内部分离兼顾效率和公正,契合行政的本质；完全分离能够赢得公众的信任,提高政府公信力。在选择时,需要考虑对于哪些机构哪个模式更合适、哪个价值更重要。
[Abstract]:Separation of functions is an important system in American administrative adjudication. The core of this system is to prohibit the combination of the prosecution function and the adjudicative function in the adjudication activities of the administrative organs, and the prosecution personnel may not influence the adjudicators in any way. Its main value lies in restricting the power, ensuring the justice of the administrative decision and improving the credibility of the government. There are few theoretical and practical attempts on separation of functions in our country. Under the background of low credibility of our government, the research on this system is very important. At the beginning of 20th century, the discussion of separation of functions began to increase in all circles of the United States. The judicial community in the United States failed to reach a consistent understanding of the separation of functions. From the 1930s to the 1940s, the research on the separation of functions was systematized and refined, supporting the separation of functions as the mainstream view of American administrative circles. The attitude of the executive branch evolved into two factions supporting internal separation and complete separation respectively. The internal separation, represented by the majority in the report of the Council of Ministers of Justice, advocates that the adjudicative function be protected from interference from other incompatible functions through arrangements within the agency. This model was adopted in the 1946 Federal Administrative procedure Act, Make it become the mode of separation of functions of most administrative agencies in the United States. According to its provisions, segregation of functions shall apply in cases where "decisions must be made on the basis of the hearing records of the organs as provided by law", and the adjudicators shall not solicit opinions from any person or any party concerned on the facts at issue, Investigators and prosecutors shall not be involved in the adjudication of the case or the case with which it is actually connected. However, this provision should be understood with the legislative intent of Congress as the starting point. In determining the scope of application of separation of functions, the necessity of separation of functions should be taken into account. "investigation" refers to the investigation activities related to prosecution, and "prosecution" should be interpreted broadly as an act of defence in the procedure containing the elements of the complaint. Complete separation advocates the establishment of two completely independent bodies responsible for investigation and prosecution and adjudication respectively. The Taft-Hartley Act of 1947 chose this model for the National Industrial Relations Commission. The system difference between this model and internal separation lies in the fact that the investigation and prosecution institutions and the adjudicators are independent of each other in personnel and non-interference in their actions, but they are still unified institutions. The formation of this model has a special background. This is due to public distrust of the old separation model and the compromise between the Senate and the House of Representatives in the legislative process. The model has been questioned in operation, but its value of improving public confidence has always been recognized. As time goes by, contradictions and problems gradually ease, and the model is extended. The difference between internal separation and complete separation is that the former focuses on administrative justice and also on efficiency and economy, while the latter takes administrative justice as the primary concern. Internal separation takes efficiency and justice into account and accords with the essence of administration; complete separation can win the trust of the public and enhance the credibility of the government. When choosing, consider which institutions which models are more appropriate and which values are more important.
【学位授予单位】：南开大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D971.2;DD912.1
本文编号：2136101
[Abstract]:Separation of functions is an important system in American administrative adjudication. The core of this system is to prohibit the combination of the prosecution function and the adjudicative function in the adjudication activities of the administrative organs, and the prosecution personnel may not influence the adjudicators in any way. Its main value lies in restricting the power, ensuring the justice of the administrative decision and improving the credibility of the government. There are few theoretical and practical attempts on separation of functions in our country. Under the background of low credibility of our government, the research on this system is very important. At the beginning of 20th century, the discussion of separation of functions began to increase in all circles of the United States. The judicial community in the United States failed to reach a consistent understanding of the separation of functions. From the 1930s to the 1940s, the research on the separation of functions was systematized and refined, supporting the separation of functions as the mainstream view of American administrative circles. The attitude of the executive branch evolved into two factions supporting internal separation and complete separation respectively. The internal separation, represented by the majority in the report of the Council of Ministers of Justice, advocates that the adjudicative function be protected from interference from other incompatible functions through arrangements within the agency. This model was adopted in the 1946 Federal Administrative procedure Act, Make it become the mode of separation of functions of most administrative agencies in the United States. According to its provisions, segregation of functions shall apply in cases where "decisions must be made on the basis of the hearing records of the organs as provided by law", and the adjudicators shall not solicit opinions from any person or any party concerned on the facts at issue, Investigators and prosecutors shall not be involved in the adjudication of the case or the case with which it is actually connected. However, this provision should be understood with the legislative intent of Congress as the starting point. In determining the scope of application of separation of functions, the necessity of separation of functions should be taken into account. "investigation" refers to the investigation activities related to prosecution, and "prosecution" should be interpreted broadly as an act of defence in the procedure containing the elements of the complaint. Complete separation advocates the establishment of two completely independent bodies responsible for investigation and prosecution and adjudication respectively. The Taft-Hartley Act of 1947 chose this model for the National Industrial Relations Commission. The system difference between this model and internal separation lies in the fact that the investigation and prosecution institutions and the adjudicators are independent of each other in personnel and non-interference in their actions, but they are still unified institutions. The formation of this model has a special background. This is due to public distrust of the old separation model and the compromise between the Senate and the House of Representatives in the legislative process. The model has been questioned in operation, but its value of improving public confidence has always been recognized. As time goes by, contradictions and problems gradually ease, and the model is extended. The difference between internal separation and complete separation is that the former focuses on administrative justice and also on efficiency and economy, while the latter takes administrative justice as the primary concern. Internal separation takes efficiency and justice into account and accords with the essence of administration; complete separation can win the trust of the public and enhance the credibility of the government. When choosing, consider which institutions which models are more appropriate and which values are more important.
【学位授予单位】：南开大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D971.2;DD912.1
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