Civil Servants' Obligation Of Obedience And The Suggestions On Theirs Dilemma

The Civil servants is a group that can not be ignored in nowadays society.Apart from those traditional stereotypes,this group has its own rights to be concerned and guaranteed.When civil servants are in the process of performing their duties,they have an obligation to obey theirs superior's decisions or commands that is set in the article 54 of the Civil Service Law of China,but when these decisions or commands are illegal,it is easy to make the civil servants of the dilemma.If civil servants obey the illegal decisions or commands,they have the responsibility of breaking the law,if they don't obey these decisions or commands,it is easy to offend the superior that will affects their interests.To resolve this dilemma,this paper argues that it is necessary to start from the cause of the dilemma which is the civil servants'obedience.This paper has six parts as follows:Through the "Watergate case" and "Zhanjiang illegal examination and approval",the first par leads to a widespread dilemma in the group of civil servants,which is when the civil servants in the face of the decision or order,they have the obligation to obey,but when the decision or the order is illegal,what the civil servants will do and how to protect their rights?Then this paper describes the current research,and clarifies the scope of the relevant concepts,and points out the research methods of this paper.The second part combs the evolution of the basic legal relationship between the civil servants and the state sovereignty,from the theory of special authority relationship to special legal relationship,from the relationship of identity to civil service relationship,and then sums up the essential connotation of the civil servants obey obligations.In the functional hierarchy of the modern civil service system,the obedience of the staff to the supervisors' orders must be explained in a way that greatly emphasizes the independence of the staff.It is the principle that the civil servants obey orders,and it is the exception that they disobey orders.The essential connotation of obedience is the fulfillment of obedience under the law.The third part argues that the rationality of the civil servants doing not obey the illegal decision or command.Through the application of the Radbruch formula and exploring the purpose of administration by law,and then sums up the conclusion:when the superior sends decisions and commands to the next level which are contrary to the purpose of natural justice and administration by law,civil servants do not have the obligation of obeying;the civil servant's obedience to the superior is based on the obedience of the duty not the obedience of the identity,the civil servant does not have to be personal attached to the superior,civil servants who engage in job activities are no longer in order to obey or to satisfy a certain person or a group,but for an objective,non-personal goal which is the public interest;civil servants' obedience give way to their duty of loyalty to law.Through listing the laws related to obedience in our country and analyzing the article 54 of The Civil Servant Law in the fourth part,it is easy to see that in the process of legislation,the starting point of setting these laws was to maintain and ensure the administrative efficiency,unity and continuity,the basic rights of civil servants received little attention.Although the article 54 of the Civil Service Law could be explained other rights,like right of supervision,the right of resistance.These rights are difficult to play to protect the rights of civil servants without the auxiliary of other systems.The fifth part states the present situation of civil servants' dilemma which is that civil servants may face the identity and disciplinary liability,the compensation liability,the criminal responsibility or the civil liability if they do not fulfill their duties properly.Problems exposed in the real life,such as verbal instructions by the superior,it is difficult to prove afterwards,after the retaliation and soon,which make the article 54 of the Civil Service Law cannot play their legal effect.If we don't make changes of the article 54 of the Civil Service Law,only through the method of hermeneutics is difficult to resolve this dilemma.This paper argues that to revise the terms need to pay attention to two points:changing the right to submit an opinion to the superior to the obligation to submit to the superior,and Introduction of liability mechanism in writing.If there is no system of these two points,other measures is difficult to play an effective role.