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当今中国正在探寻一条既反映中国历史和特殊国情,又符合世界普遍遵循的宪政原则的道路,以实现具有自己特色的社会主义宪政和法治。中国宪政秩序立足于这样的分权原则之上,即政府行使行政权,而中国共产党掌握政治权力,这一宪政秩序可以从劳教和双规这两个相关却不同的法律制度中看出来。在解读中国社会主义宪政的基础上,本文将阐明为什么劳教是有违宪法的,而双规在中国现行宪政框架下却是合宪的。劳教是针对个人的行为准则,由宪法规定的政府行政权力来执行,但是它不仅偏离了宪法,也违背了共产党“群众路线”的要求;双规处理的是党员干部违反政治纪律的行为,其权能超越了政府的行政权力,主要依据在于党章而非宪法文本,双规并不会遇到劳教所面临的违宪问题。当然双规的合法性有待加强,本文提出了对双规的改革建议,以使其更好地契合中国共产党的组织路线和中国社会主义宪政原则。
Today, China is exploring a road that reflects both Chinese history and its special national conditions as well as the constitutional principles universally followed in order to realize its own socialist constitutionalism and the rule of law. China’s constitutional order is based on the principle of decentralization, in which the government exercises its executive power. The Chinese Communist Party has the political power. This constitutional order can be seen in two related and different legal systems, namely, the labor camp and the double regulations. On the basis of interpreting China’s socialist constitutional government, this article will explain why re-education through labor is unconstitutional, while the double regulations are constitutional under the current constitutional framework of China. The re-education through labor is an individual code of conduct and is enforced by the government’s administrative power as prescribed by the Constitution. However, it violates not only the constitution but also the requirements of the “mass line” of the Communist Party. The dual rule deals with the violation of political discipline by Party members and cadres, Its power transcends the government’s executive power. Its main basis lies in the party constitution rather than the constitutional text. The double regulations will not encounter the unconstitutional issue that forced labor education faces. Of course, the legitimacy of dual regulations needs to be strengthened. This paper presents suggestions for the reform of the dual regulatory system in order to better fit the organizational line of the Communist Party of China and the principles of China’s constitutionalism.