摘要
法治的根本在于控制国家权力、保障社会权益,而制约与监督是控制权力和保障权益最基本的制度基础。制约与监督具有不同的权力关系和不同的控权功能,准确把握制约与监督在制度和功能上的区别的前提是理解制约与监督不同的内在逻辑和运行机制。传统"强监督—弱制约"的控权模式使制约制度的功能被削弱,监督制度的固有缺陷被放大。唯有在强化监督的同时合理设计权力主体之间的制约结构,建立并完善"制约—监督"均衡的控权制度,才能更加有效地推进我国法治建设,提高预防和惩治腐败的水平。
Controlling state power and protecting public rights are the original purposes of the rule of law. Restriction and supervision serve as two basic mechanisms to control power and protect rights, and they are different in terms of power relations and functions. In order to get a good grasp of the differences between restriction and supervision in mechanism and function, we should have a better understanding of their different internal logics and operating mechanisms. The relationship between restriction and supervision exists in the following three different aspects. First of all, it refers to the control relations among agents who hold power; second, it refers to the system of power control, namely the institutionalization of restriction relations and supervision relations; third, the restriction and supervision of power are the natural outcomes of power control mechanism, aiming at ensuring a smooth and regular operation of power. Restriction and supervision are two different control relations between power subjects. The former is bidirectional while the latter is unidirectional. In most cases, however, the subject of power gets involved in multiple power relations where the restriction relation and supervision relation interweave. They are two key factors having impact on the power structure, which in turn affects the concrete realization of power relations. The ways to execute restriction and supervision are well established in specific power structures, forming two different power-control mechanisms of restriction and supervision. In the course of power allocation, power operation and power accountability, both the restriction mechanism and the supervision mechanism have their own particular features. Overall, supervision is an efficiency-oriented power control mechanism while restriction is a power control mechanism based on procedural rationality. Supervision mechanism means that an agent can hold complete authority and power within a special scope and shall be punished only when the execution of power is contrary to the intention commissioned. Restriction mechanism divides the power or authority into different parts, aiming at ensuring the restrictions between different agents of power and avoiding the abuse of power. Although restriction mechanism and supervision mechanism are taken as basic mechanisms ensuring the normal operation of power, both have their own limitations. On the one hand, too much emphasis on restriction will reduce the efficiency of power operation, and the particular person who abuses his/her power may escape punishment. （）n the other hand, supervision is always faced with a paradox--how could the supervisor himself/herself be supervised？ Supervising the supervisory authority by establishing another supervisory department may result in endless expansion of supervision power and supervisory organizations. Under the traditional power controlling mode in China which paid more attention to supervision rather than put emphasis on restriction, the functions of restrictive mechanism are impaired and the inherent defects of supervisory mechanism are magnified. To prevent and punish corruption more effectively and make fresh progress in improving our legal system, the only way is to design reasonable restrictive structures for subjects of power, strengthen supervision, and establish and perfect a balanced power controlling mechanism of restriction and supervision.
出处
《浙江大学学报（人文社会科学版）》
CSSCI
北大核心
2013年第6期43-51,共9页
Journal of Zhejiang University:Humanities and Social Sciences
基金
国家社会科学基金重大项目(09ZD007)
浙江省软科学项目(2012C25036)
关键词
制约
监督
权力结构
控权制度
restriction
supervision
power structure
power control mechanism
