美國行政裁決中的職能分離制度研究
發(fā)布時間：2018-07-21 16:24
【摘要】：職能分離是美國行政裁決中的一項重要制度。該制度的核心是禁止行政機構(gòu)在裁決活動中追訴職能和裁決職能的合并,追訴人員不得以任何方式影響裁決人員。其主要價值在于制約權(quán)力,保證行政決定公正,提高政府公信力。我國有關(guān)職能分離的理論研究和實務(wù)嘗試較少,在我國政府公信力低的背景下,對該制度的研究十分重要。 20世紀初,美國各界對職能分離的探討開始增多。美國司法界沒能對職能的分離形成一致認識。美國行政界在30年代到40年代,對有關(guān)職能分離問題的研究逐步體系化和精細化,支持職能分離成為美國行政界的主流觀點。行政界的態(tài)度演化為兩個派別分別支持內(nèi)部分離和完全分離。 內(nèi)部分離以司法部長委員會報告多數(shù)派為代表,主張通過在機構(gòu)內(nèi)的安排布置來使裁決職能免受其他與之不相協(xié)調(diào)的職能的干擾。1946年聯(lián)邦行政程序法采納了該模式,使之成為美國絕大部分行政機構(gòu)的職能分離模式。依其規(guī)定,職能分離適用于“依法律規(guī)定必須根據(jù)機關(guān)的聽證記錄作出裁決”的案件,裁決人員不得向任何人或任何當事人就所爭執(zhí)的事實征求意見,調(diào)查和追訴人員不得參與該案或與該案有實際的聯(lián)系的案件的裁決。但在理解該規(guī)定時應(yīng)以國會立法目的作為出發(fā)點。在確定職能分離的適用范圍時應(yīng)主要考慮職能分離是否必要,“調(diào)查”是指與追訴有關(guān)的調(diào)查活動,“追訴”應(yīng)當被廣義的解釋為在包含控訴因素的程序當中的辯護行為。 完全分離主張建立兩個完全獨立的機關(guān)分別負責調(diào)查追訴職能和裁決職能。1947年塔夫脫-哈特利法案為國家勞資關(guān)系委員會選擇了該模式。該模式與內(nèi)部分離的制度差別在于調(diào)查和追訴機構(gòu)與裁決機構(gòu)在人事上相互獨立、在行動上互不干擾,但對外仍是統(tǒng)一的機構(gòu)。該模式的形成有特殊的背景。其成因是公眾對原有分離模式的不信任,以及參眾兩院在立法過程中的折中。該模式在運行中受到較大質(zhì)疑,但是其提高公眾信心的價值始終受到肯定。隨著時間的推移矛盾和問題逐漸緩和,該模式得以延用。 內(nèi)部分離和完全分離的差別在于關(guān)注點不同,前者在于關(guān)注行政公正的同時也關(guān)注效率和經(jīng)濟的問題,后者以行政公正作為首要關(guān)注點。內(nèi)部分離兼顧效率和公正,契合行政的本質(zhì)；完全分離能夠贏得公眾的信任,提高政府公信力。在選擇時,需要考慮對于哪些機構(gòu)哪個模式更合適、哪個價值更重要。
[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.
【學位授予單位】：南開大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D971.2;DD912.1
本文編號：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.
【學位授予單位】：南開大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D971.2;DD912.1
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相關(guān)期刊論文 前2條
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