| The joint party and government document is a unique way of governance in China,which has been used since the founding of the People’s Republic of China and plays a special role in the long history.After the 18 th National Congress of the Communist Party of China,the number of documents jointly issued by the Party and the government began to surge,and related issues such as the nature of such documents gradually became the focus of common concern of the practical and academic circles.However,due to the fact that the main body of the party-government joint issuance is different from the general normative documents,a large number of information disclosure cases have been adjudicated,indicating that the party-government joint issuance has the risk of escaping judicial review.Therefore,from the perspective of information disclosure,this paper chooses the judicial review of the documents jointly issued by the party and the government as the topic,and tries to carry out judicial review of the documents jointly issued by the government,and puts forward corresponding countermeasures on this basis,so as to put the documents jointly issued by the government on the track of the rule of law.The article discusses from four aspects:The first part is the theoretical definition and legitimacy basis of the information disclosure of the party and government joint document.The joint party and government document is not a new thing.It has been applied to the practice of governing the country and playing a special role since the founding of New China.Since the 18 th National Congress of the Communist Party of China,the number of documents issued by the Party and the government has increased significantly compared with the previous ones,showing a trend of "blowout growth".The concept of party-government joint issuance can be divided into broad and narrow sense,and the broad sense of joint issuance includes documents jointly issued by all party-government entities;In a narrow sense,the joint issuance only refers to the documents jointly issued by the CPC Central Committee and the State Council(and its General Office).There are two possibilities for the nature of the document issued jointly by the party and the government.One refers to the party’s regulations and the other refers to the normative documents jointly issued by the state and local governments.This article mainly discusses the latter.As a legal concept,the normative basis of the party-government joint document issuance is the Constitution and relevant inner-party regulations.The academic community’s understanding of the normative attributes of the party-government joint document issuance includes "document theory","writing theory","tool theory",and "system theory".This paper believes that it is reasonable to combine the meaning of the name and the meaning of the verb of the document jointly issued by the party and government,and to characterize it as a "mixed normative document" jointly made by the party and government organs.Based on this,the document jointly issued by the party and government may involve the performance of duties or related administrative functions by the administrative organs,and have direct or indirect impact on the rights and obligations of citizens.It has a legitimate basis to make it public as a kind of information.The second part is the judicial review practice investigation of the information disclosure of the party and government joint release.Through the investigation of 45 samples,the author found that the trial standards of the party and government joint issue of documents in judicial practice are diverse,which leads to inconsistent judgment attitudes.In addition,different adjudication logic and rules have been formed in judicial practice,resulting in the dilemma of applying for the publication of documents jointly issued by the Party and the government.The third part is about the issue of judicial review of the information disclosure issued by the party and government jointly.After the above investigation,there are some problems in the current judicial review of the joint party and government documents,such as inconsistent standards and formal review,which lead to a large number of joint party and government documents can not achieve information disclosure,and there is a risk that the judicial authority will excessively respect the administrative authority and transfer the judicial power,which is not conducive to the function of the judicial authority.Of course,at the same time,there is no uniform procedural standard for the review of the common documents of the party and government,which leads to the neglect of the procedural provisions of the common documents of the party and government in the judicial review.The fourth part is the suggestions to solve the problem of judicial review of information disclosure issued by the party and government jointly.Based on the above problems,this paper proposes that the review standards of the joint documents of the Party and the government should be unified,with both formal and substantive standards attached equal importance.The judicial organ should first judge the main factors of the joint release of the party and government,and then identify its authority factors.Then,in the process of review,it should also consider whether the joint release of the party and government has external characteristics.Finally,the judicial organ should also jointly review the joint release of the party and government through the filing and review process. |
