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| 文章编号：1672-3104(2020)01-0087-10 |
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混合性党规的正当性证成与适用范围——党政联合制定党规的一种理论回应 |
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欧爱民，李丹 |
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（湘潭大学法学院，湖南湘潭，411105） |
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| 摘 要： 混合性党规是拥有党规制定权的党组织联合国家机关在相同或相近领域共同立法而呈现的具有中国特色的法治形态，是涉及国家管理事项的特殊党内法规。在党内法规和国家法律的二元法治格局下，混合性党规被长期忽视甚至误解，其正当性饱受质疑。事实上，混合性党规适应了党和国家治理的现实需要，与党领导权优化理论、法治成本/效益理论和党政关系协调理论相契合，具有理论与现实的正当性。混合性党规的适用范围并非越广泛越好，其创制应接受上述理论的反向约束，需将之限定在“党的直接管理领域”“党政协同共治领域”等特定范围。 |
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| 关键词： 混合性党规；直接管理领域；协同共治领域 |
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The justification and scope of application of mixed party rules:A theoretical response to the joint formulation of party rules by the CPC and the state organs |
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OU Aimin,LI Dan |
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（School of Law, Xiangtan University, Xiangtan411105, China） |
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| Abstract: The mixed party rules and regulations are the forms of the rule of law with Chinese characteristics, which are made by the CPC organizations and the state organs in the same or similar fields. Simultaneously, they are special laws and regulations of CPC that involve both party and state management matters. Under the dual pattern of the rules and regulations of CPC and the national laws, the mixed party rules have been ignored or even misunderstood for a long time. Moreover, their legitimacy has been questioned. In fact, the mixed party rules and regulations meet the actual needs of the party and state governance. They are compatible with the theory of the optimizing party leadership, the theory of cost / benefit of the rule of law, and the theory of party and government relations coordination. Therefore, the mixed party rules have the legitimacy of theory and reality. But the scope of application of mixed party rules is not as wide as possible. Their creation should be subject to the reverse constraints of the above theories, and it must be limited to specific fields, such as "the direct management fields of the party" and " the collaborative governance field of the party and government". |
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Key words: mixed party rules; the direct management field; the collaborative governance field |
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