法治视域下的“三定”规定功能研究
发布时间：2018-07-22 14:59
【摘要】：在我国过去三十余年的行政组织实践中,“三定”规定并未被纳入法的范畴。但在机构改革中其被广泛应用,并已成为政府部门组织重构、资源配置的重要依据。由于一直未明定其法律地位,学界和实务界对其缺乏统一认识,尤其是对其功能和性质等问题存在分歧。以上因素从一定程度上造成了部门组织法治理念和实践的困惑。就目前收集的材料来看,在制度生成的初期,“三定”规定主要是在授权模式的框架下,用以替代部门组织法,规范机构改革中的组织行为,确立并维护改革后的行政管理秩序。但随着国家转型的不断深入,机构改革的周期性推进,“三定”规定在缺乏授权的前提下,其功能呈现出一定程度的异化,使得部分的组织行为欠缺正当性。目前,对于“三定”规定的研究十分鲜见,虽在个别行政组织法和机构改革的讨论中,偶尔可以觅得其“身影”,但大多仅是通过有限的文字“点出”这一事实状态,仍然缺乏从理论到实践的“周到”考察。凡是合理的东西都是现实的,凡是现实的东西都是合理的。“三定”规定得以在机构改革的实践中形成并生长,并在行政系统(以及其他系统)中得到普遍运用,其中必然有其理性基础。基于此,本文拟重新审视宪法法律对部门组织的规定,在回顾“三定”规定的形成和发展之基础上,厘清其性质,提炼其功能,并结合其在发展过程中呈现出的功能异化等问题,在现行法治的框架下,探寻成本相对较低的阶段性完善方案,以此推动部门组织法治的实现。
[Abstract]:In the practice of administrative organization in China in the past thirty years, the stipulation of "three determinations" has not been included in the scope of the law. However, it is widely used in organizational reform and has become an important basis for the reorganization of government departments and the allocation of resources. Because its legal status has not been clearly defined, there is a lack of unified understanding of it in academic and practical circles, especially on its function and nature. To a certain extent, the above factors have caused confusion in the concept and practice of departmental organization of the rule of law. As far as the material collected at present is concerned, in the early stage of the formation of the system, the "three definite" provisions were mainly used in the framework of the authorization model to replace the organization law of the department and to regulate the organizational behavior in the institutional reform. Establish and maintain the administrative order after the reform. However, with the deepening of the national transformation and the periodic promotion of the institutional reform, the function of the "three definite" regulations is dissimilated to a certain extent under the premise of lack of authorization, which makes part of the organizational behavior lack legitimacy. At present, the study of the "three definite" provisions is very rare. Although they can occasionally be found in the discussion of individual administrative organizations and institutional reforms, most of them are only "pointed out" through a limited number of words. There is still a lack of "thoughtful" inspection from theory to practice. What is reasonable is realistic, and what is real is reasonable. The stipulation of "three determinations" has been formed and grown in the practice of institutional reform and has been widely used in administrative systems (and other systems), which must have its rational foundation. Based on this, this paper intends to re-examine the provisions of the constitutional law on the organization of departments, on the basis of reviewing the formation and development of the "three definite" provisions, to clarify their nature and refine their functions. Combined with the dissimilation of its function in the process of development, under the framework of the current rule of law, this paper explores the relatively low cost of the stage of improvement, so as to promote the implementation of the departmental organization of the rule of law.
【学位授予单位】：上海交通大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D921
[Abstract]:In the practice of administrative organization in China in the past thirty years, the stipulation of "three determinations" has not been included in the scope of the law. However, it is widely used in organizational reform and has become an important basis for the reorganization of government departments and the allocation of resources. Because its legal status has not been clearly defined, there is a lack of unified understanding of it in academic and practical circles, especially on its function and nature. To a certain extent, the above factors have caused confusion in the concept and practice of departmental organization of the rule of law. As far as the material collected at present is concerned, in the early stage of the formation of the system, the "three definite" provisions were mainly used in the framework of the authorization model to replace the organization law of the department and to regulate the organizational behavior in the institutional reform. Establish and maintain the administrative order after the reform. However, with the deepening of the national transformation and the periodic promotion of the institutional reform, the function of the "three definite" regulations is dissimilated to a certain extent under the premise of lack of authorization, which makes part of the organizational behavior lack legitimacy. At present, the study of the "three definite" provisions is very rare. Although they can occasionally be found in the discussion of individual administrative organizations and institutional reforms, most of them are only "pointed out" through a limited number of words. There is still a lack of "thoughtful" inspection from theory to practice. What is reasonable is realistic, and what is real is reasonable. The stipulation of "three determinations" has been formed and grown in the practice of institutional reform and has been widely used in administrative systems (and other systems), which must have its rational foundation. Based on this, this paper intends to re-examine the provisions of the constitutional law on the organization of departments, on the basis of reviewing the formation and development of the "three definite" provisions, to clarify their nature and refine their functions. Combined with the dissimilation of its function in the process of development, under the framework of the current rule of law, this paper explores the relatively low cost of the stage of improvement, so as to promote the implementation of the departmental organization of the rule of law.
【学位授予单位】：上海交通大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D921
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