On China's Civil Servant Status Of The Rights Guaranteed Relief

The Law of Civil Servant is coming out soon. Basing on the right of status guarantee of the civil servant, the writer is trying to comment on the breakthrough of the theory of special jurisdiction relationship and propose some ideas on improving the approaches of retrieving the right of the civil servants based on their status. All these are expected to be helpful to the legislation of the Law of Civil Servant. The dissertation is divided into four parts, more than 30,000 words all together.The first part focuses on the right of civil servants especially their right of status guarantee. The right of status guarantee of the civil servant refers to the status of being civil servants after they are enrolled should be strictly protected by law, and they should not be deposed, demoted, dismissed or receive other administerial punishments unless defined by law. The right of status guarantee of the civil servant is the core of the right of civil servants, and it is also the basis and sources of other rights. Any other rights would be of no effect without the right of status guarantee of the civil servant. The right of status guarantee of the civil servant discussed in this dissertation is based on the differentiation between officials of political appointment and civil service officials, only civil service officials have the right of status guarantee of the civil servant. And the influence of economic right because of the adverse punishment is not included in the discussion, although the economic loss and the loss of status right can not be divided completely.The second part is about the retrieve of the right of status guarantee of the civil servant. Most countries that have law on the right of status guarantee of the civil servant also have regulations on a series of complete retrieve measures, including retrieve inside the governmental agents and judicial retrieve. But the retrieve of the right of status guarantee of the civil servant is very limited in our country. When a civil servant receives an adverse punishment, he/she can only allege or accuse it to related government department, no administrative reconsideration and administrative lawsuit is available.The third part is on the theoretical root that leads to the lack of the right of status guarantee of the civil servant. The root mainly lies in the influence of the theory of special jurisdiction relationship. From late 19th century via the 2nd World War to the current democracy and the rule of law, the theory of special jurisdiction relationship experienced its prosperity and decline. Most of the countries that actively drum for it formerly abandoned it and brought it into the track of rule of law. After general review of the development of the theory of special jurisdiction relationship in Germany, Japan and Taiwan, China; this dissertation point out that:1, this theory is right the opposite of the pursuance of human rights under constitutional government. 2, It conflicts with the basic rule of administrative law-legal reservation.3. It runs counter to the pursuance of being a country rule by law.The fourth part is the theoretical rethinking of the retrieve of the right of status guarantee of the civil servant and the visualization of its system structure. The author thinks the theory of special jurisdiction relationship is based on the differentiation of the internal and external administrative actions or administrative legal relations. This differentiation is undisputable from its appearance, but indeed, when it comes to the opposite party of the internal action, or in other words, if it is the major punishments that relate to the basic rights of the civil servant, then the retrieve should not be limited inside the government. The retrieve of the civil servant's right should be improved basing on the consideration of the justice of procedure. After analyzing the procedure of administrative punishment and the procedure of judicial retrieve in the United States, France and Japan; the author proposed the visualization of the retrieve of the right of the st...