我国公务员抵制权制度研究
发布时间：2018-11-20 20:41
【摘要】：作为政府机关的工作人员,公务员的职责就是服从法律,执行上级的命令,目的是为了保证行政效率有效的服务于社会,然而在实践中,决策层的决定可能不完全正确,这就可能发生决定与法律的冲突,急需我们寻找一种解决问题的方法。2006年1月1日,《中华人民共和国公务员法》的实施,是中国公务员法历史上深刻的变革,其中最大的一个闪光点就是对于公务员抵制权的规定,当下级公务员在面对上级领导做出错误或明显违法的命令或决定时,有拒绝的权利,可以拒绝执行。虽然在公务员法里有所涉及的内容毕竟还处于初级阶段。法律只是做出了原则性的规定,而有关具体如何操作等深层次的问题没有做出详细的规定,还有一系列问题并未得到很好的解决。抵制权是我国《公务员法》中赋予公务员的一项新的权力,因此广大公务员如何正确理解抵制权和正确行使抵制权显得尤为重要。公务员正确行使抵制权不仅能够行之有效的防止上级滥用国家权力,还可以监督上级部门必须依照法律法规下达指令。这样不但让广大行政相对人的合法权益受到了维护,公务员个人的合法权利也受到了很好的维护。基于此,公务员抵制权制度正式在公务员法中设立是我国政治文明进步的标志,对最终实现依法行政的法制目标具有极其重要的现实意义。因此有必要对其进行深入研究与探讨,从而才可以去适应变化多端的社会发展。全文的主要内容如下： 文章首先叙述了选题的背景及意义,对公务员抵制权的国内外研究现状进行了介绍,并提出了自己的研究思路与方法。接着就公务员抵制权的含义、相关概念、历史演变进行了叙述,同时也阐述了公务员抵制权的必要性和在我国的历史发展。第三章就我国公务员抵制权制度存在的问题和原因进行了分析,首先是我国公务员抵制权制度存在的问题,文章主要从我国公务员抵制权制度的概念不清晰、标准判断模糊、机制不健全和缺乏实施细则,缺乏操作性这四个方面进行叙述,然后结合存在的问题对其原因进行了探讨。第四章对域外公务员抵制权制度的进行了比较研究,对德国、法国、日本这三个国家抵制权制度的特点加以整合并且根据我国的实际情况提出了对我国公务员抵制权制度的一些启示。第五章在前文的基础上针对完善我国公务员抵制权制度的对策展开深入的研究和探索。从加强研究,提高我国公务员抵制权的制度设计水平；出台相关公务员抵制权制度的配套实施细则；建立健全我国公务员抵制权制度的相关机制；提升公务员的责任意识,破除“惟长官”意志,这四个方面提出了详细的完善对策。
[Abstract]:As a staff member of a government organ, the duty of a civil servant is to obey the law and carry out the orders of a superior, in order to ensure that the administration is efficient and effective in serving the society. However, in practice, the decision of the decision-making level may not be entirely correct. As a result of this possible conflict between decision and law, we urgently need to find a solution to the problem. On January 1, 2006, the implementation of the Civil servants Law of the people's Republic of China was a profound change in the history of Chinese civil service law. One of the biggest flashpoints is the right to boycott civil servants, when the lower civil servants in the face of a wrong or clearly illegal orders or decisions, they have the right to refuse, can refuse to execute. Although in the civil service law has involved the content after all is still in the preliminary stage. The law has only made the principle stipulation, but has not made the detailed stipulation about the specific operation and so on deep level question, still has a series of questions which has not been solved very well. The right of resistance is a new power given to civil servants in the Civil servants Law of our country. Therefore, it is very important for civil servants to correctly understand the right of resistance and exercise the right of resistance. The correct exercise of the right of resistance by civil servants can not only effectively prevent the abuse of state power by higher authorities, but also supervise the higher authorities to issue instructions in accordance with laws and regulations. In this way, not only the legitimate rights and interests of the vast number of administrative counterparts have been safeguarded, but also the legitimate rights and interests of the civil servants have been well safeguarded. Based on this, the official establishment of the civil servant resistance system in the civil servant law is the symbol of the progress of political civilization in our country, and has extremely important practical significance for the ultimate realization of the legal goal of administration by law. Therefore, it is necessary to conduct in-depth research and discussion in order to adapt to the changing social development. The main contents of the paper are as follows: firstly, the paper describes the background and significance of the topic, introduces the current research situation of the resistance right of civil servants at home and abroad, and puts forward its own research ideas and methods. Then it describes the meaning of the right of resistance of civil servants, related concepts, historical evolution, and also expounds the necessity of the right of resistance of civil servants and the historical development in our country. The third chapter analyzes the problems and causes of the system of resistance right of civil servants in our country. Firstly, the problems of the system of resistance right of civil servants in our country are analyzed. The article mainly analyzes the concept of the system of resistance right of civil servants in our country, and the standard judgment is vague. The four aspects of imperfect mechanism, lack of implementation rules and lack of maneuverability are described, and then the causes are discussed in combination with the existing problems. The fourth chapter makes a comparative study on the system of foreign civil servants' right to resist, to Germany, France, The characteristics of the resistance right system of the three countries in Japan are integrated and some enlightenment to the resistance right system of civil servants in our country are put forward according to the actual situation of our country. In the fifth chapter, on the basis of the above, the author makes a deep research and exploration on the countermeasures of perfecting the system of civil servants' right to resist. From strengthening the research, improving the system design level of the civil servant's right of resistance, issuing the relevant detailed rules of the civil servant's right of resistance, establishing and perfecting the relevant mechanism of the system of the civil servant's right of resistance; In order to improve the duty consciousness of civil servants and break the will of "only chief", the four aspects put forward detailed and perfect countermeasures.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.11
本文编号：2345960
[Abstract]:As a staff member of a government organ, the duty of a civil servant is to obey the law and carry out the orders of a superior, in order to ensure that the administration is efficient and effective in serving the society. However, in practice, the decision of the decision-making level may not be entirely correct. As a result of this possible conflict between decision and law, we urgently need to find a solution to the problem. On January 1, 2006, the implementation of the Civil servants Law of the people's Republic of China was a profound change in the history of Chinese civil service law. One of the biggest flashpoints is the right to boycott civil servants, when the lower civil servants in the face of a wrong or clearly illegal orders or decisions, they have the right to refuse, can refuse to execute. Although in the civil service law has involved the content after all is still in the preliminary stage. The law has only made the principle stipulation, but has not made the detailed stipulation about the specific operation and so on deep level question, still has a series of questions which has not been solved very well. The right of resistance is a new power given to civil servants in the Civil servants Law of our country. Therefore, it is very important for civil servants to correctly understand the right of resistance and exercise the right of resistance. The correct exercise of the right of resistance by civil servants can not only effectively prevent the abuse of state power by higher authorities, but also supervise the higher authorities to issue instructions in accordance with laws and regulations. In this way, not only the legitimate rights and interests of the vast number of administrative counterparts have been safeguarded, but also the legitimate rights and interests of the civil servants have been well safeguarded. Based on this, the official establishment of the civil servant resistance system in the civil servant law is the symbol of the progress of political civilization in our country, and has extremely important practical significance for the ultimate realization of the legal goal of administration by law. Therefore, it is necessary to conduct in-depth research and discussion in order to adapt to the changing social development. The main contents of the paper are as follows: firstly, the paper describes the background and significance of the topic, introduces the current research situation of the resistance right of civil servants at home and abroad, and puts forward its own research ideas and methods. Then it describes the meaning of the right of resistance of civil servants, related concepts, historical evolution, and also expounds the necessity of the right of resistance of civil servants and the historical development in our country. The third chapter analyzes the problems and causes of the system of resistance right of civil servants in our country. Firstly, the problems of the system of resistance right of civil servants in our country are analyzed. The article mainly analyzes the concept of the system of resistance right of civil servants in our country, and the standard judgment is vague. The four aspects of imperfect mechanism, lack of implementation rules and lack of maneuverability are described, and then the causes are discussed in combination with the existing problems. The fourth chapter makes a comparative study on the system of foreign civil servants' right to resist, to Germany, France, The characteristics of the resistance right system of the three countries in Japan are integrated and some enlightenment to the resistance right system of civil servants in our country are put forward according to the actual situation of our country. In the fifth chapter, on the basis of the above, the author makes a deep research and exploration on the countermeasures of perfecting the system of civil servants' right to resist. From strengthening the research, improving the system design level of the civil servant's right of resistance, issuing the relevant detailed rules of the civil servant's right of resistance, establishing and perfecting the relevant mechanism of the system of the civil servant's right of resistance; In order to improve the duty consciousness of civil servants and break the will of "only chief", the four aspects put forward detailed and perfect countermeasures.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.11
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