Can local government departments enter the vertical management department?

At present, many local administrative organs have gradually realized vertical management, that is, people, money and things are managed by higher-level business departments and are no longer under the jurisdiction of local people's congresses and governments at the same level. According to the constitution of our country, local people's congresses at all levels are local organs of state power, and the vertical management of some local administrative organs seems to weaken the constitutional power of local people's congress deputies to some extent-it is unconstitutional for Ge Qingting, a representative of Qiaoqu People's Congress in Suzhou, Anhui Province, to preside over vertical management. The author believes that the vertical management of administrative organs is unconstitutional. First of all, the institutional setup is unconstitutional. With regard to the nature, status and relationship between local people's congresses and local state administrative organs at all levels, the Constitution clearly stipulates that all state administrative organs must be produced by the National People's Congress without exception. The vertical management of some local administrative organs has obviously weakened the right given by the Constitution to local people's congresses as power organs to set up state administrative organs. At the same time, because the "supervision unit" is only responsible to its superior administrative organ in working relationship, it has no obligation to report its work and responsibility to the government at the same level and the National People's Congress, which is also unconstitutional. Secondly, the appointment and dismissal of personnel is illegal. Articles 96 and 104 of the Constitution stipulate that "local people's congresses at or above the county level shall establish standing committees." When the people's congress at the corresponding level is not in session, it exercises some functions and powers of the people's congress, such as "deciding the appointment and removal of state functionaries according to the authority prescribed by law". Item 10 of Article 44 of the Local Organization Law stipulates: "According to the nomination of governors, chairmen of autonomous regions, mayors, governors, county heads and district heads, the appointment and removal of secretaries, directors, directors and section heads of the people's governments at the corresponding levels shall be decided." The appointment and removal of personnel of the "supervision unit" is entirely decided by its superior business department. This practice not only deprives the head of government at the same level of the right to nominate, but also deprives the Standing Committee of the National People's Congress at the same level of the right to appoint and dismiss, which violates the legislative intent of the Constitution and the local organization law. There is no doubt that the vertical management of administrative organs brings a lot of harm. First, it undermines the authority of the Constitution and laws. Both of them are state administrative organs, but the vertically managed units are outside the norms and constraints of the Constitution and laws, so that the basic principles of democratic centralism and legal unity stipulated in the Constitution cannot be correctly implemented in the vertically managed units. The second is to weaken the power of the power organs. According to statistics, at present, the vertically managed administrative organs account for about one-third of the local administrative organs, and there is a growing trend, which weakens the scope of the local people's congresses and their standing committees empowered by the Constitution and laws. The third is to destroy the composition system of government agencies. According to the second paragraph of Article 56 of the Local Organization Law, local people's governments at or above the county level are composed of the heads (deputies) of the governments at the corresponding levels and the heads of the departments under the people's governments at the corresponding levels. Because the main person in charge of the "supervision unit" is limited to the special management system and does not participate in the government at the same level, this directly separates the government institutional system established by the local organization law according to the constitutional spirit. In this regard, the author suggests that we should first straighten out the relationship. Since the Constitution and the local organization law have clearly stipulated that the relationship between the National People's Congress and the administrative organs includes the right to set up institutions, the right to appoint and dismiss personnel and the right to supervise work, the Constitution and laws should be implemented to the letter. As for the relationship between the "supervision unit" and the government at the same level, if vertical management is really needed in terms of administrative power and financial power, we may refer to the provisions of the local organization law on the audit department and implement "compartmentalization" dual management, which is neither unconstitutional nor illegal, and also takes care of the special circumstances of some administrative departments. Secondly, we should revise and improve the law. If the situation of all vertical administrative departments is really so special that it is necessary to realize the reform and innovation of the constitutional system or fundamental system, then it is necessary to seriously consider the revision of the Constitution and local organization laws by the National People's Congress through legal procedures, and make clear legal provisions on the establishment, jurisdiction and appointment and removal of personnel of vertical administrative departments, so as to fundamentally eliminate the disadvantages and harms brought about by the vertical management of some administrative organs. Yang Xiaojun, a professor at the National School of Administration, said that the vertical management of administrative organs is not unconstitutional. There are more and more departments implementing vertical management in administrative organs, including the central government and departments below the provincial level. People, money, goods and rights are all vertical, and others, money and goods are vertical but not vertical. The vertical management of administrative organs evolved from the local management in the past. Therefore, with the increase of this evolution, some people have raised the question of whether it is constitutional. The author believes that the vertical management of local administrative organs does not violate the constitutional provisions. The reasons are as follows: First, according to the provisions of the Constitution and the local organization law, local governments at all levels are produced by, accountable to and supervised by the National People's Congress. However, the establishment of local governments at all levels is directly stipulated by the Constitution and local organization laws, not decided by local people's congresses at all levels. The local government is the executive organ of the people's congress at the same level, so it is directly supervised by and responsible for the people's congress at the same level. However, the working departments of local governments are not. According to the provisions of the Constitution and the local organization law, the working departments of local governments are set according to the needs of the governments at the corresponding levels, not decided by the people's congresses at the corresponding levels. From this principle, it is not directly decided by the local people's congress, but something within the jurisdiction of the local government. It should be said that the vertical or non-vertical management of work departments is not the authority of local people's congresses, but the same authority of local governments and governments at the next higher level. Second, local governments at all levels are not only the executive organs of people's congresses at the same level, but also the subordinate organs of higher-level governments. This dual status of local governments shows that local governments should not only obey the decisions of the people's congresses at the same level, but also accept the supervision of the people's congresses at the same level, and be responsible and report their work to the state administrative organs at the next higher level. Because local governments are state administrative organs under the unified leadership of the State Council, and they all obey the State Council. Therefore, local governments do not completely "belong" to people's congresses at the same level, but also "belong" to higher-level governments. Under this dual "subordinate" system, the superior government (such as the State Council) decides that some government departments should implement vertical management, and local governments should obey it. Under the dual ownership system of local government designed by the constitution, if the superior government decides to change the ownership relationship of local government departments, it cannot be said that the constitutional power of local people's congresses has been weakened. Because the higher-level government adjusts the ownership relationship of local government departments, it is also the power given by the Constitution. Third, judging from the constitutional provisions, the "article" and "block" management system of administrative organs is not directly stipulated by the Constitution itself. According to the Constitution and the local organization law, local governments are responsible and supervised by the people's congresses at the same level, and government departments are directly responsible to the government. According to the content of the constitution, it is actually the government that determines the working departments, and the NPC supervises the working departments that have been determined by the government. It is worth noting that the vertical management currently implemented by administrative organs needs to be improved in two aspects: First, the degree of legalization needs to be strengthened. An administrative organ is an organ that administers according to law, and its organizational structure, functions and powers are prescribed by law. Adjusting the subordinate relationship of administrative organs is a major change in the relationship between administrative functions and powers, and it should be in the form of legislation, not as an internal affair of administrative organs. Second, although the vertical management relationship does not violate any provisions of the Constitution, the transfer of too many local government departments to the central government for vertical management will inevitably weaken the authority of local governments and indirectly affect the role of local people's congresses. In favor: vertical management is not unconstitutional. Jiang Caixun (deputy of Chongqing Municipal People's Congress): Whether the vertical management of local administrative organs conforms to the legal provisions should be determined by national laws and administrative regulations. It is difficult to answer directly or simply whether the vertical management of local administrative organs is unconstitutional. This is because the second paragraph of Article 95 of the Constitution stipulates: "The organization of local people's congresses and local people's governments at all levels shall be prescribed by law." The constitution does not directly stipulate the vertical management of local administrative organs, but authorizes the National People's Congress and its Standing Committee to enact laws and make specific provisions. Therefore, the vertical management of a department should be judged according to the provisions of local organization law. If it is based on laws and administrative regulations, it is legal. Otherwise, it is illegal or unconstitutional. For example, according to the audit law, local audit institutions at all levels are under the unified leadership of the people's government at the same level and under the leadership of audit institutions at higher levels. This is a dual leadership relationship; The Tobacco Monopoly Law stipulates that the provincial tobacco monopoly administrative department is under the dual leadership of the State Council tobacco monopoly administrative department and the provincial government, with the State Council tobacco monopoly administrative department as the main one. This is the vertical management relationship. In recent years, public security, quality and technical supervision, industry and commerce, land and other departments have also implemented a vertical leadership system below the provincial level. Whether it conforms to the provisions of the local organization law needs to be judged on the basis of its vertical management. If there are only normative documents or other documents based on the State Council and meeting minutes, it is worth discussing. Li Yunsheng (Wuyishan, Fujian): In China, the management between the upper and lower levels of administrative organs has always been divided into two lines, one is compartmentalized management and the other is vertical management. The so-called supervision is a misunderstanding of many people, who think that supervision is divorced from the management of local governments and local people's congresses. Judging from the institutions that have achieved regulation, the regulatory departments such as national taxation and industry and commerce have done better than when they were in power. The main reason is that these departments have avoided the interference of some local human factors and can exercise administrative power more correctly after the implementation of this regulation. In this case, the overall work of the local people's congress has been done, so where should we start to weaken the power of the local people's congress? Chen Changlie (Pingtang, Guizhou): The implementation of "vertical" leadership by departments is the result of local people's congresses not playing their due role, and it is not unconstitutional. Regarding the division of functions and powers between the central and local governments, the Constitution stipulates: "The division of functions and powers between the central and local state organs follows the principle of giving full play to local initiative and enthusiasm under the unified leadership of the central government." There is no other standard for "giving full play to local initiative and enthusiasm". Therefore, it is not unconstitutional to cancel some powers originally granted to local authorities. Objection: Vertical management is unconstitutional (Donggang, Liaoning): The author thinks that vertical management of administrative organs is unconstitutional in disguise and should be stopped. There are three reasons: first, these administrative organs are an indispensable part of local governments, which is also the basic point of the "compartmentalization" management model of administrative divisions in China. If every government department becomes the object of competition by its superiors because of its oil and water, it will inevitably lead to the existence of local governments at the grass-roots level in name only. Second, once these administrative organs are out of the jurisdiction of local governments, their people, money and things will no longer be controlled by local governments, which will make the administrative authority and legislative supervision of local people's congresses on the election, appointment and removal of administrative organs in an embarrassing situation because they lose the objects they point to, thus making the provisions that local people's congresses are local state power organs exist in name only. Third, the administrative organs that have been or will be managed vertically will be managed by their superiors, which will inevitably make it difficult for their short-term plans and long-term plans to synchronize with the corresponding actions of local governments, and even restrict each other, which is unfavorable to local economic development. Ma Dianbin (Chongqing Liangping): The vertical management of local administrative organs runs counter to the spirit of the current Constitution and weakens the power of the National People's Congress. First of all, the so-called vertical management is mainly the vertical management of personnel rights and financial rights, that is to say, local people's congresses have lost their direct personnel appointment and removal rights to these local administrative organs. This is a kind of "contempt" for local administrative organs, such as "being produced by local people's congresses" and "being responsible to local people's congresses", and it is a disguised weakening of the power of local people's congresses. Secondly, after the implementation of vertical management, although local people's congresses (mainly at the county level) can still supervise these organs (for example, evaluating their work for a period of time), their supervision is inevitably weak because they have lost the right to appoint and remove the chief executives of these local administrative organs. Finally, in the current reality, local people's congresses should also actively exercise their functions and supervise the normal work of administrative organs that implement vertical management. When serious violations of law and discipline are found, they can make suggestions to higher people's congresses according to law and take organizational measures against the responsible persons of the above administrative organs.