The Study Of Supervisory Power In Our Constitution

As a new form of power,the supervisory power has an important position in China's power system.The Constitution constitutes the fundamental normative basis for the allocation of supervisory power,and the practice of the Office of the Party and Government has intensified the complexity of the operation of the supervisory power.This article intends to focus on the theoretical boundary between the political and legal aspects of " adhering to the Party's unified leadership in anti-corruption word and the normative exercise of supervisory power in accordance of law," the value balance of " anti-corruption,authoritative efficiency and basic human rights protection",and the normative governance of "the integration of the inner regulations of the Communist Party of China and the state law." Through normative analysis,empirical investigation and comparative research,a comprehensive and systematic investigation of the supervisory power is conducted.Under this circumstance,it's hoped that some theoretical references for the study of China's monitoring power can be provided.In addition to the introduction,the full text is divided into five chapters.The first chapter analyzes the ontology of supervisory power in detail.The author interprets the basic meaning of the supervisory power,arguing that the supervisory power is the power that is exercised by the organization established by the law.Via supervisory power,the statutory organization supervises,investigates and disposes of people exercising public power in accordance with statutory power and procedure to ensure the lawful and correct exercise of public power.It is significantly different from supervisory,executive,auditing,and procuratorial power.In nature,supervisory power has "two levels of hierarchy".Firstly,the establishment of the supervisory power does not break the framework of the fundamental political system of the people's congress.Instead,it is still a constitutional independent state power.Secondly,the basic practice of unified anti-corruption work led by the party and the work of the Party and Government Office make the supervisory have certain political attributes in the actual operation.However,this political attribute cannot change the essential characteristics of the rule of law of the supervisory power,which objectively requires the adherence to the idea that the rule of law is for the bottom line,and politics is the core.In the practice of supervisory power,the right to supervise must uphold the principle of party's leadership,the principle of democratic supervision,the principle of independent exercise,the principle of division of labor coordination and the principle of human rights protection.The operation of the supervisory power has the optimization function of the constitutional framework,the purification function of public officials,the governance function of corrupt behavior and the shaping function of the national image.The second chapter makes a comparative analysis of the power allocation of the supervisory power in China's constitution.Through the theoretical origins of the constitutional legitimacy of the Western supervisory power,we examine the different modes of Western supervisory power allocation under the state power organization of the Western "three powers separation" structure.I will sort out Sun Yat-sen's "the five-right constitution" and the idea of independent supervision,focusing on the allocation and operation of the supervisory power during the Nanjing National Government.With this,it's hoped that we can construct the constitutional theoretical basis of China's constitutional supervisory power and examine the history of the constitutional change of China's supervisory power.By comparing and analyzing methods,we compare the different allocation and rule of operation of supervisory power under different constitutional ideological foundations and political organization forms in order to provide a powerful reference for the improvement of China's supervision system.The author believes that in general,the Western supervisory power has a profound theoretical foundation and a tradition of the rule of law,paying attention to maintaining the authority of the supervisory authority.As a consequence,the supervisory power is relatively flexible.Although the supervisory power in the "five-power constitution" negates the autocratic system of the supreme ruler from supervision,it has not been implemented well.Although it has created a model of party-government supervision and interaction,it has made the supervisory institution vulnerable and easily influenced by political parties due to lack of external supervision.Besides,the supervisory power has not been able to be balanced internally.China's supervisory power is legally granted an independent status by the highest authority.In practice,it adopts the form of the Office of the Party and Government,emphasizing the party's unified leadership over anti-corruption work.The power allocation is more powerful,and the internal structure is balanced.The third chapter examines the status and relationship of China's supervisory power in the state power structure.The constitutionalization of the supervisory power has transformed China's original "four powers" structure into the current "five powers" structure.It is difficult to divide the supervisory power into a closed loop of the power operation of “making rules – implementing rules – referee rules”,but because of the full coverage of supervision,it has an “axis” status in the state power structure.With the construction of relationship with other state powers,it's ensured that other state powers can operate in accordance with established orbits.As far as the supervisory power and legislative power is concerned,the supervisory power cannot monitor the legislative power,but the legislative power can regulate the power of supervision.As far as the supervisory power and administration is concerned,the supervisory power is not subject to the interference of administrative power,and the two constitute a relationship of mutual cooperation and restriction.As far as the supervisory power and procuratorial power is concerned,the supervisory power has restrictions on the inspection of procuratorial power.There is a mutual relationship between the jurisdiction of the case,the transfer of evidence and the conversion of compulsory measures.The procuratorial power can restrict the supervisory power via the exclusion of illegal evidence and the review of prosecution.As far as the supervisory power and trial is concerned,the supervisory power also limits the supervision of judicial power.There is a cooperative relationship between the them in the handling of cases and the appearance of relevant personnel,and the judicial power can be restricted through illegal evidence exclusion and state compensation.The fourth chapter examines the practice of various functions within China's supervisory power.The supervisory power consists of three basic capabilities,namely supervising,investigating and disposing.The author advocates redefining “public power” and “public officials” to establish the scope and boundary of the full coverage of supervision,and the former is the main standard,while the latter is the sub-standard.The author believes that the right to investigate also has two levels.The investigation of job violations and duty crimes must strictly abide by the law,and the adherence to the rule of law is its essential attribute.However,due to the practice of the Office of the Party and Government,the investigative power often has the characteristics of “party and government punishment”.Therefore,in the process of legal regulation,it is necessary to first organize the internal norms.As to the internal governance mode,the mode of“ state law dominates and inner regulations of the CPC supports” needs to be adhered to.When dealing with the relationship between law and politics,legal intentional blank and limited exceptions is preferred.In the case of investigation,the Supreme People's Procuratorate's preliminary inspection standard was extended,and the principle of “high rather than low” was adopted to improve the evidence certification standards of case investigations to ensure the connection with other state organs.The author believes that the government affairs constitute the main disposal method of monitoring and disposing rights,and the introduction of the "Government Punishment Law" can provide us with reference for the transformation of the party's internal regulations and national laws.In addition,a preliminary design of the specific terms of the "Government Punishment Law" has been made in this article.The fifth chapter puts forward the views on the rule of law construction and improvement of China's supervisory power.First of all,the perfection of the right to monitor needs to promote the construction of the legal system of state supervision and build a platform for the standardization of the operation of supervision.Secondly,it's necessary to improve the party's approach to anti-corruption work,take good care of the coordination mechanism of the Commission for Discipline Inspection and the Supervisory Committee,and strengthen the party's training of supervisors.Finally,we must improve the supervision of the supervisory power and ensure the rule of law in the operation of the supervision power.