| As the first specialized law with regard to civil servant management,《Civil Servant's Law of the People's Republic of China》replaced《Temporary Regulation of National Civil Servant》who have carried out for several years, already formally took effect since January 1, 2006, this symbolized the management of civil servant promote to a higher level on the road of turning to be standard and scientific.It is well known that, harmonious, stable development of modern society depends on the valid management of government. The government is a impersonative law body, it has no volition and behavior ability, the expression of its will and the performance of the policy exactly depend on its microcosmic member—civil servant, the civil servant is material national governor, is the essential element that keeping the national machine well-balanced running. Be the national governor, civil servant own the strong public power that the law endued to carry out management function, be an employment community in the meantime, civil servant should also own homologous legal rights to guaranteeing their interests be effectively exercised, protecting their benefit be free from violating. However, our country current lawmaking and the common people's traditional idea usually pay more attention to the civil servant's obligation, neglect their legal rights and the redress and guarantee for these rights, therefore show itself a kind of disequilibrium. This appearance go against the reasonable extension of contemporary human rights idea in the crowd of civil servant, so this text concern itself with the law institution level of valid redress of civil servant's rights.Civil servant's rights means that the law endue a civil servant the permission that can do or don't do certain behavior, or request others to do or don't do certain behavior for carrying out its legal benefits during the period of exercising official business or having a civil servant identity. Civil Servant's Law prescribe that civil servant take eight kind of rights, covered political rights, material economy guarantee rights and culture and educate rights etc. and it provide concrete law articles for the realization of the legal benefits of civil servant. In the meantime, the first part of this text analysis the connotation, function of civil servant's rights redress in particular, the civil servant's rights redress is a kind of public power repair after the event, it can be divided into administrative redress and judicatory redress. Be an importance constitute part, it is necessary in administrative lawmaking in all countries, the most important function of it lies in the maintenance and guarantee of the civil servant's legal rights, as well the institution of civil servant's rights redress be advantageous to encourage the civil servant, raise administration work efficiency and also be advantageous to suppressing inner corruption, inspect the execution of internal administrative power, therefore all of this can set up harmonious work surroundings with the normal internal administration behavior, promote the image of government. Investigate its essence, the function of institution of civil servant's rights redress lies in its important realistic meaning for constructing harmoniously society, pushing political democratization and rule of law forward.The research object of the second part of this text is the institution of civil servant's rights redress of the United States, France and Japan, author gives us a summary of the contents of related institution at the beginning. This several nations are forthgoer in administration lawmaking, they accumulate abundant law theories and practice experience, it is worthy for us to carry on a thorough investigation. In this part the author proceed with redress method, organization constitution and institution of their civil servant's rights redress, conclude respectively, summarize rationality and possibility of these related institutions, finally refine the factor and characteristics that an ideal institution of civil servant's rights redress should include, make it to be academic guide for the related institution of our country. Then by select and contrast, and be free from the interference of political background, economic condition and cultural environment, the author consider that the ideal appearance of the civil servant's rights redress should include thus characteristics, that is, civil servant right redress institution should be definitely prescribed by concrete law articles, pay more attention on the procedure articles, the administrative redress method should be given priority, the judicatory redress method should be an authority one, it carry on an ultimate guarantee, the two methods match and link up each other, cover reasonable range, and establish specialized civil servant's rights redress organization, endue them independent law position. Only this kind of institution appearance can make civil servant's rights get a perfect redress.Following in the third part the author expatiate on the traditional social thought background and lawmaking theories background of the design of institution of civil servant's rights redress of our country. The society thought background includes a recessive factor and a conspicuous factor. The recessive factor is officer-based thought who inherits from more than 2,000 year's feudalism history, the conspicuous factor is "people's civil servant" theory who inherited and developed by the Communist Party of China. For lawmaking theories background, the institution of civil servant's rights redress of our country based on the internal administrative behavior theory in fact, its standpoint agree with the beginning appearance of special power relation theory casually. The institution of civil servant's rights redress emanate from the 60's in last century until the Civil Servant Law be carried out in 2006, it experienced for more than 40 years, gradually accumulate a series of related laws and criterions, include recheck, report, accuse and the personnel dispute arbitrament etc. a series of concrete administrative redress method, set up basic and integrated administrative redress way.However the current institution of civil servant's rights redress exist lots of limitation and shortages, the most grave problem is that there is only one civil servant's rights redress method—administrative method, judicatory redress way is absent. In the meantime, the related laws and criterions are confused, there have no unify lawmaking. Furthermore, the rule about rights redress organization is complicated and the organizations have no independent law position, thus it is hard to get satisfied result of rights redress, the rights redress institution lacks scientific and concrete procedure rules, it is disadvantaged to actualize procedure justice. All of these restrict to excuse reasonable redress for the civil servant's rights, and it goes against with political democratization and rule of law. So the author based on the current institution, consult the conclusion of before text about ideal institution appearance, put forward opposite reasonable improvement suggestion, suggested renovate the theory basis of institution of civil servant's rights redress, revise the institution design of civil servant's rights redress in the meantime, confirm the judicial redress method by law, establish systemic civil servant's rights redress lawmaking, reformed the civil servant's rights redress administrative organization, endue them the independent law position. Therefore, through the realistic and viable institution imagine, it is appreciated for the author if this text can provide some suggestions for academic study, institution correction and the political democracy progress. |
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