近现代中国公务员考绩法制研究
发布时间：2018-09-12 17:47
【摘要】： 在世界各国政治制度由封建专制迈向近代宪政的过程中,执掌国家公权力的官员也从凌驾在人民之上的官僚特权阶层成为为社会提供公共服务的公务人员,从“官吏”到“公务员”的转变不仅仅是一个词汇的变化,也蕴含了近代宪政确立的人权法制理念,对官吏的考绩不再是君主控制官吏的手段,而成为了人民对政府服务社会效果的评判。 近代以来,资产阶级民主政治取代了封建专制,世界各国普遍以立宪的形式来保障公民的民主权利。然而“徒法不足以自行”,民主制度的运行公民权利的保障都需要国家机关行使管理社会的职能。国家机关作为组织是没有行为能力的,只能依靠自然人来行使职权,这些从事社会公共事务管理的人员就是公务员。东西方各主要资本主义国家在从封建君主专制国家向近代化的宪政国家转变过程中,各国的“官吏”也在从封建君主的私人仆从转变为对国家效忠的公务员。宪法主导下的法治国家为了确保官僚集团服务人民,各国代议机关都用法律的强制性规定规范国家对公务员的管理,因此公务员的身份取得、职责范围、权利保障和人员范围都是由国家法律制度的直接规定而确定的。公务员的工作成绩直接关系到公务员的职责履行状况,它不单单是公务员职务升降、获奖受罚的依据,也直接反映了国家机关服务社会的能力与效果。因此,国家对其公务员的考绩也就成为民主国家公务员法律制度的重要内容。公务员考绩法能够起到对公务员的监督与激励的双重作用,其主要内容应该是以下三个方面组成,首先是设定公务员的工作业绩目标,通过定期或不定期的考核来确定每个公务员的个人工作成绩,最后根据成绩来对公务员实施奖惩,以便达到提高国家机关工作能力的效果。 第二次工业革命极大地促进了生产力的发展和社会进步,世界各国都不约而同地选择了官僚制来组织国家机关。根据马克斯·韦伯的研究,官僚制下的公务员集团具有高度的专业化程度,内部的控制方式是“上级命令——下级服从”方式,因此官僚制拥有极高的社会管理能力。上级通过对下级的考绩评估下级的个人素质与职务之间的关系,以此来决定公务员在等级官僚体系内的地位,公务员的考绩能够强化上级对下级的控制力度,能够提高公务员的专业性。因此,考绩手段是官僚制常用的管理手段。 正是因为公务员的考绩制度对于官僚制的运行如此重要,民主国家必须对公务员的考绩制度立法规范,使官僚集团能够为保障公民权利高效地服务。因此,公务员的考绩规则必须法制化。一方面,近现代国家的官僚制不同于封建时代的官僚制,在一个民主法制化的宪政国家中,人民拥有主权,国家机关应该服务于该国社会,保障公民权利。组成国家机关的公务员是一个社会阶层,他们在国家机关中形成的身份等级使得他们更加容易服从其长官的命令而不是人民的诉求。特别是二十世纪以来,工业文明的极大发展导致了社会结构的剧变,个人本位让位于社会本位,国家权力中心从议会转移到了政府,行政权的扩张加剧了官僚集团的失控倾向,服务于人民的“公仆”也是人,有可能为自己私欲而滥用职权。因此各民主国家纷纷采用颁布公务员考绩法的方式控制官僚集团,使其在具有强大的社会管理功能的同时,也能受到人民的控制为人民服务。另一方面,公务员考绩规则的法制化有利于官僚制的稳定,韦伯认为,官僚制的统治意味着“没有憎恨和激情,因此也没有‘爱’和‘狂热’,处于一般的义务概念的压力下；‘不因人而异’,形式上对‘人人’都一样”。①因此官僚制的内部控制规则必须要以法律的形式出现,保证不受到长官的情绪影响。因此二战后,世界各国普遍采用了考绩法制的方式控制官僚制,也维护官僚集团的稳定性。 我国是一个专制主义中央集权制度统治了二千多年的国家,而封建君主专制统治的工具恰恰是官僚制。两千年的政治实践使得我国古代的官吏考绩制度十分完备和发达,单就官吏考绩的标准、程序和方法等技术性指标而言,我国古代的官吏考绩与西方的近代公务员管理法制有许多相似之处。但是封建君主时代的官吏考绩与近现代的公务员考绩法制的根本区别在于国家主权的所有者发生了根本性变化。我国的政治法律制度的近代化肇始于二十世纪初的清末法制变革,对于我国这样一个“后发外生型现代化国家”,上层建筑的民主化并不意味着人民主权原则的落实,虽然封建官吏改变了称呼,被称为“文官”或“公务员”,但是官僚集团只是独裁领袖的附庸,考绩法制也沦为独裁领袖控制官僚集团奴役人民的工具。由于民族资产阶级的弱小,代表帝国主义和封建大地主利益的袁世凯建立了北洋军阀政府,辛亥革命后,资产阶级建立民主政治的诉求仍然是镜花水月。虽然如此,作为清末的改革者,袁世凯和后来的北洋政府领导人继续了文官考绩法制现代化的进程。北洋政府移植德日的文官考绩法制取得了一定的成果,但是在法律制定上缺乏规划,使文官考绩制度既没有统一的法制,也没有统一的机关落实该法制,考绩法多以临时性的规范性文件出现,杂乱无章。加之北洋政府自身就是按照湘军淮军宗法关系组织起来的军阀政权,极为腐朽,在文官考绩上更是任用私人,卖官鬻爵,考绩法制被虚置,几成具文。 北伐战争胜利后,南京国民政府按照孙中山先生的五权宪法理论建立了下辖五院的“万能政府”。为了规范公务员行为,南京国民政府不但颁布了《公务员考绩法》以及与之配套的大量法制文件,而且专设考试院行使公务员的考绩权,落实考绩法和其他公务员的管理法。这种理论设想本身就违背了官僚制的科层理论,上级主管不能对下级考绩将会导致官僚集团的工作效率大打折扣。因此,五权宪法制度下的考绩权从一开始就无法落实,不但在立法上考绩法与基本法的权属规定相抵触,在权力运行上,铨叙部也是有职无权。更为糟糕的是,五权合一的万能政府与国民党的党治理论相结合,导致了政府万能而人民无权的结果,国民党不但没能领导人民走向三民主义的大道,反而成为了凌驾在人民头上的三座大山,官僚集团完全脱离了服务人民的初衷,成为了人民的对立面。公务员考绩法制也遭到了专制的一步步破坏,先是因为不切实际而丧失了权威性,后又成为蒋介石个人独裁的障碍,被虚置了起来,我国近现代考绩法制的第二次实施也失败了。 新中国的公务员考绩法制可上溯到十年内战时期,它随着人民政权发展而逐渐完备。红色根据地时期的干部考察办法较为强调对干部的监督,苏维埃政府的组织部门对干部的考绩还没有与奖惩相结合。抗战时期的特殊环境极大地完善了党的干部管理制度,干部的考绩制度也逐渐完备起来。建国后的干部考核工作由粗到细,逐渐条理化、经常化、制度化,与当时党的工作重心政治建设相结合,干部考绩侧重政治素质。改革开放后,干部考核逐渐正规化、法制化。以经济建设为中心的公务员考绩体系,对于国计民生的改善起到了促进作用。2005年《公务员法》的颁布更加速了公务员考绩制度法制化的进程。但是在公务员考绩过程中,唯GDP数据的形式主义不利于我国的发展与稳定,这要求我国在制定公务员考绩相关法律制度的同时,要注重公务员绩效目标的制定也要不断地借鉴先进的考绩法制理论,并加以实践。针对当前我国考绩法制的问题,我国应当强化人民民主参与,公务员考绩的法定程序中应该包含民主制定公务员绩效目标和民主参与考绩过程,以法制保障公务员权利的同时,依法保障人民的民主权利,将人民当家作主与公务员的工作效率结合起来,这样做不仅是建立服务型政府的时代要求,也是落实我国依法治国的宪法规定的必由之路。
[Abstract]:In the process of political system from feudal autocracy to modern constitutionalism in all countries of the world, officials in charge of state power also changed from bureaucratic privileged stratum above the people to civil servants who provided public services. The change from "official" to "civil servant" is not only a change of vocabulary, but also contains the modern constitution. The concept of human rights and legal system established by the government is no longer a means for the monarch to control the officials, but a way for the people to judge the effect of the government's service to the society.
Since modern times, bourgeois democratic politics has replaced feudal autocracy, and constitutions have been generally adopted to protect citizens'democratic rights all over the world. However, the practice of law is not enough for self-reliance. The protection of citizens' rights in the operation of democratic systems requires state organs to exercise the functions of managing society. In the process of transformation from feudal monarchy to modern constitutional state, the "officials" of various countries also changed from private servants of feudal monarchy to loyal government. In order to ensure that the bureaucratic group serves the people, the representative organs of all countries regulate the management of civil servants with the mandatory provisions of the law. Therefore, the identity acquisition, the scope of duties, the protection of rights and the scope of personnel of civil servants are determined by the direct provisions of the national legal system. Achievements have a direct bearing on the performance of civil servants'duties. It is not only the basis for the rise and fall of civil servants' posts, but also the basis for awards and punishments. It directly reflects the ability and effect of state organs to serve society. Therefore, the state's performance appraisal of civil servants has become an important part of the legal system of civil servants in democratic countries. To the dual role of supervision and incentive to civil servants, its main content should be composed of the following three aspects: first, set the performance objectives of civil servants, through regular or irregular assessment to determine the individual performance of each civil servant, and finally according to the results of the civil servants to implement rewards and punishments, in order to improve the state organs The effect of working ability.
The Second Industrial Revolution greatly promoted the development of productive forces and social progress, and all countries in the world chose bureaucracy to organize state organs by coincidence. The superior determines the position of the civil servant in the hierarchical bureaucracy by evaluating the relationship between the personal qualities of the subordinates and their positions. The performance of the civil servant can strengthen the control of the superior over the subordinates and improve the professionalism of the civil servant. Performance appraisal is a common management tool in bureaucracy.
It is precisely because the performance appraisal system of civil servants is so important for the functioning of bureaucracy that democratic countries must legislate and standardize the performance appraisal system of civil servants so as to enable bureaucratic groups to effectively serve the protection of civil rights. Therefore, the performance appraisal rules of civil servants must be legalized. Bureaucracy, in a democratic and legalized constitutional state, the people have sovereignty, and the state organs should serve the society and safeguard the rights of citizens. Especially since the 20th century, the great development of industrial civilization has led to drastic changes in the social structure. The individual standard has given way to the social standard. The center of state power has shifted from parliament to the government. The expansion of administrative power has aggravated the runaway tendency of bureaucratic groups. The "public servant" serving the people is also a human being, and may be abused for his own selfish desires. Authority. Therefore, democratic countries have adopted the promulgation of civil service performance appraisal law to control bureaucratic groups, so that it has a strong social management function, but also can be controlled by the people to serve the people. With "no hatred and passion, and therefore no love and fanaticism," under the pressure of the general concept of obligation; "no one is different" and "everyone is the same in form." (1) Therefore, the internal control rules of bureaucracy must be in the form of law to ensure that they are not influenced by the emotions of the senior officials. Countries generally adopt the performance appraisal system to control bureaucracy and maintain the stability of bureaucratic groups.
China is a country ruled by autocratic centralization system for more than 2000 years, and the tool of feudal autocratic monarchy is just bureaucracy. Two thousand years of political practice made the ancient official performance appraisal system of our country very complete and developed. There are many similarities between the official performance appraisal system and the modern civil service management system in the West. But the fundamental difference between the official performance appraisal system in the feudal monarchy era and the modern civil service performance appraisal system lies in the fundamental change of the owner of the state sovereignty. The democratization of superstructure does not mean the implementation of the principle of people's sovereignty in such a "late-developing and exogenous modernized country". Although the feudal officials changed their appellations and were called "civil servants" or "civil servants", the bureaucratic group was only a vassal of the dictatorial leader, and the performance appraisal system was reduced to the control of the bureaucrat by the dictatorial leader. Because of the weakness of the national bourgeoisie, Yuan Shikai, who represented the interests of imperialism and feudal landlords, established the Northern Warlord Government. After the Revolution of 1911, the bourgeoisie's demand for democratic politics was still a mirror in the mirror. However, as a reformer in the late Qing Dynasty, Yuan Shikai and the later Northern Warlord Government led him. Beiyang government transplanted the civil service performance appraisal system of Germany and Japan and made some achievements, but it lacked planning in the legal formulation, which made the civil service performance appraisal system neither unified legal system nor unified organs to implement the legal system. The performance appraisal method appeared mostly in temporary normative documents and was in disorder. In addition, the Beiyang government itself is a warlord regime organized in accordance with the patriarchal clan system of the Hunan Army and the Huaihe Army. It is extremely decadent. It appoints private officers and sells official titles. The performance appraisal system is virtually empty and written.
After the victory of the Northern Expedition, the Nanjing National Government established the "omnipotent government" under the five courts under the jurisdiction of Dr. Sun Yat-sen according to the theory of the Five-Power Constitution. In order to regulate the behavior of civil servants, the Nanjing National Government not only promulgated the "Civil Servant Performance Appraisal Law" and a large number of supporting legal documents, but also set up an examination center to exercise the civil servants'right of performance appraisal. Actual Performance Appraisal Law and other civil servant management laws. This theoretical assumption itself violates the bureaucratic hierarchical theory, and the superior supervisor's failure to evaluate the performance of the subordinate will lead to a great reduction in the efficiency of the bureaucratic group. Therefore, the performance appraisal right under the Five-Power Constitution system can not be implemented from the beginning, not only in the legislative performance appraisal law and the basic law. What is worse, the combination of the omnipotent government with the Kuomintang's theory of Party governance leads to the result that the government is omnipotent and the people are powerless. The Kuomintang has not led the people to the Three People's Principles, but has become overwhelming over the people. In the three mountains, the bureaucratic group completely broke away from the original intention of serving the people and became the opposite of the people. Shi failed.
The performance appraisal system of civil servants in New China can be traced back to the ten years of civil war, which gradually became complete with the development of the people's regime. The methods of cadre inspection in the Red Base Area emphasized the supervision of cadres, and the appraisal of cadres by the organizational departments of the Soviet government had not been combined with rewards and punishments. After the founding of the People's Republic of China, the work of cadre assessment has been gradually ordered, regularized and institutionalized from coarse to fine, combining with the political construction of the Party's focus of work at that time, and emphasizing on political quality. The promulgation of the Civil Servant Law in 2005 accelerated the legalization of the civil service performance appraisal system. However, in the process of civil service performance appraisal, the formalism of GDP data is not conducive to the development and stability of China, which requires China to formulate the civil service performance appraisal system. At the same time, we should pay attention to the formulation of the performance objectives of civil servants and draw lessons from the advanced theory of the performance appraisal legal system and put it into practice. It is not only the requirement of the times to establish a service-oriented government, but also the only way to implement the constitutional provisions of governing the country according to law.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2010
【分类号】：D630.3
本文编号：2239781
[Abstract]:In the process of political system from feudal autocracy to modern constitutionalism in all countries of the world, officials in charge of state power also changed from bureaucratic privileged stratum above the people to civil servants who provided public services. The change from "official" to "civil servant" is not only a change of vocabulary, but also contains the modern constitution. The concept of human rights and legal system established by the government is no longer a means for the monarch to control the officials, but a way for the people to judge the effect of the government's service to the society.
Since modern times, bourgeois democratic politics has replaced feudal autocracy, and constitutions have been generally adopted to protect citizens'democratic rights all over the world. However, the practice of law is not enough for self-reliance. The protection of citizens' rights in the operation of democratic systems requires state organs to exercise the functions of managing society. In the process of transformation from feudal monarchy to modern constitutional state, the "officials" of various countries also changed from private servants of feudal monarchy to loyal government. In order to ensure that the bureaucratic group serves the people, the representative organs of all countries regulate the management of civil servants with the mandatory provisions of the law. Therefore, the identity acquisition, the scope of duties, the protection of rights and the scope of personnel of civil servants are determined by the direct provisions of the national legal system. Achievements have a direct bearing on the performance of civil servants'duties. It is not only the basis for the rise and fall of civil servants' posts, but also the basis for awards and punishments. It directly reflects the ability and effect of state organs to serve society. Therefore, the state's performance appraisal of civil servants has become an important part of the legal system of civil servants in democratic countries. To the dual role of supervision and incentive to civil servants, its main content should be composed of the following three aspects: first, set the performance objectives of civil servants, through regular or irregular assessment to determine the individual performance of each civil servant, and finally according to the results of the civil servants to implement rewards and punishments, in order to improve the state organs The effect of working ability.
The Second Industrial Revolution greatly promoted the development of productive forces and social progress, and all countries in the world chose bureaucracy to organize state organs by coincidence. The superior determines the position of the civil servant in the hierarchical bureaucracy by evaluating the relationship between the personal qualities of the subordinates and their positions. The performance of the civil servant can strengthen the control of the superior over the subordinates and improve the professionalism of the civil servant. Performance appraisal is a common management tool in bureaucracy.
It is precisely because the performance appraisal system of civil servants is so important for the functioning of bureaucracy that democratic countries must legislate and standardize the performance appraisal system of civil servants so as to enable bureaucratic groups to effectively serve the protection of civil rights. Therefore, the performance appraisal rules of civil servants must be legalized. Bureaucracy, in a democratic and legalized constitutional state, the people have sovereignty, and the state organs should serve the society and safeguard the rights of citizens. Especially since the 20th century, the great development of industrial civilization has led to drastic changes in the social structure. The individual standard has given way to the social standard. The center of state power has shifted from parliament to the government. The expansion of administrative power has aggravated the runaway tendency of bureaucratic groups. The "public servant" serving the people is also a human being, and may be abused for his own selfish desires. Authority. Therefore, democratic countries have adopted the promulgation of civil service performance appraisal law to control bureaucratic groups, so that it has a strong social management function, but also can be controlled by the people to serve the people. With "no hatred and passion, and therefore no love and fanaticism," under the pressure of the general concept of obligation; "no one is different" and "everyone is the same in form." (1) Therefore, the internal control rules of bureaucracy must be in the form of law to ensure that they are not influenced by the emotions of the senior officials. Countries generally adopt the performance appraisal system to control bureaucracy and maintain the stability of bureaucratic groups.
China is a country ruled by autocratic centralization system for more than 2000 years, and the tool of feudal autocratic monarchy is just bureaucracy. Two thousand years of political practice made the ancient official performance appraisal system of our country very complete and developed. There are many similarities between the official performance appraisal system and the modern civil service management system in the West. But the fundamental difference between the official performance appraisal system in the feudal monarchy era and the modern civil service performance appraisal system lies in the fundamental change of the owner of the state sovereignty. The democratization of superstructure does not mean the implementation of the principle of people's sovereignty in such a "late-developing and exogenous modernized country". Although the feudal officials changed their appellations and were called "civil servants" or "civil servants", the bureaucratic group was only a vassal of the dictatorial leader, and the performance appraisal system was reduced to the control of the bureaucrat by the dictatorial leader. Because of the weakness of the national bourgeoisie, Yuan Shikai, who represented the interests of imperialism and feudal landlords, established the Northern Warlord Government. After the Revolution of 1911, the bourgeoisie's demand for democratic politics was still a mirror in the mirror. However, as a reformer in the late Qing Dynasty, Yuan Shikai and the later Northern Warlord Government led him. Beiyang government transplanted the civil service performance appraisal system of Germany and Japan and made some achievements, but it lacked planning in the legal formulation, which made the civil service performance appraisal system neither unified legal system nor unified organs to implement the legal system. The performance appraisal method appeared mostly in temporary normative documents and was in disorder. In addition, the Beiyang government itself is a warlord regime organized in accordance with the patriarchal clan system of the Hunan Army and the Huaihe Army. It is extremely decadent. It appoints private officers and sells official titles. The performance appraisal system is virtually empty and written.
After the victory of the Northern Expedition, the Nanjing National Government established the "omnipotent government" under the five courts under the jurisdiction of Dr. Sun Yat-sen according to the theory of the Five-Power Constitution. In order to regulate the behavior of civil servants, the Nanjing National Government not only promulgated the "Civil Servant Performance Appraisal Law" and a large number of supporting legal documents, but also set up an examination center to exercise the civil servants'right of performance appraisal. Actual Performance Appraisal Law and other civil servant management laws. This theoretical assumption itself violates the bureaucratic hierarchical theory, and the superior supervisor's failure to evaluate the performance of the subordinate will lead to a great reduction in the efficiency of the bureaucratic group. Therefore, the performance appraisal right under the Five-Power Constitution system can not be implemented from the beginning, not only in the legislative performance appraisal law and the basic law. What is worse, the combination of the omnipotent government with the Kuomintang's theory of Party governance leads to the result that the government is omnipotent and the people are powerless. The Kuomintang has not led the people to the Three People's Principles, but has become overwhelming over the people. In the three mountains, the bureaucratic group completely broke away from the original intention of serving the people and became the opposite of the people. Shi failed.
The performance appraisal system of civil servants in New China can be traced back to the ten years of civil war, which gradually became complete with the development of the people's regime. The methods of cadre inspection in the Red Base Area emphasized the supervision of cadres, and the appraisal of cadres by the organizational departments of the Soviet government had not been combined with rewards and punishments. After the founding of the People's Republic of China, the work of cadre assessment has been gradually ordered, regularized and institutionalized from coarse to fine, combining with the political construction of the Party's focus of work at that time, and emphasizing on political quality. The promulgation of the Civil Servant Law in 2005 accelerated the legalization of the civil service performance appraisal system. However, in the process of civil service performance appraisal, the formalism of GDP data is not conducive to the development and stability of China, which requires China to formulate the civil service performance appraisal system. At the same time, we should pay attention to the formulation of the performance objectives of civil servants and draw lessons from the advanced theory of the performance appraisal legal system and put it into practice. It is not only the requirement of the times to establish a service-oriented government, but also the only way to implement the constitutional provisions of governing the country according to law.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2010
【分类号】：D630.3
【引证文献】
相关硕士学位论文 前1条
1 于善珍;程序正义视野下的侦查讯问程序[D];湖南师范大学;2012年
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