职称资格认定要依法规范
杨涛
4月11日,全国又举行了一年一次的职称外语考试。专家在接受记者采访时认为,目前参加考试者付出的成本高,实际收益小,考试仅是走形式,在工作中没有起到多大作用。(《深圳商报》4月12日)
和诸多的从业资格的行政许可一样,有关行政机关对其机关工作人员或直接管理的事业单位的工作人员要求的职称资格认定上也存在不少的问题,诸如制定的主体与程序,考试种类、标准等等。但是,对于公民、法人或者其他组织的从业资格的行政许可上,有即将生效实施的《中华人民共和国行政许可法》等明确的法律来调整,而对于相当于内部行政行为的职称资格认定上,却没有相应的法律来调整,大多由行政机关自行制定。然而,职称资格却也限制和影响了公民的各种待遇和发展的机遇,关系到公民的较重大的权益,在现实生活中影响可谓不小,也需要予以规范。笔者认为职称资格认定上主要存在以下一些问题:
首先,在制定的主体和程序上,目前职称资格认定是大多是由规章及规章以下的规范性文件来制定,制定的法律文件级别都比较低,制定的程序上缺乏公开和透明,缺少听取意见的程序。而从业资格的行政许可,必须由全国人大及其常委会、国务院、省级人大、省级政府来制定,同时《行政许可法》第十九条还明确规定,起草法律草案、法规草案和省、自治区、直辖市人民政府规章草案,拟设定行政许可的,起草单位应当采取听证会、论证会等形式听取意见。
其次,职称资格认定缺乏一种可以比较明确的标准,制定随意性较大。如职称外语考试不分领域、行业,硬性要求都必须参加,引起了许多人的质疑。有专家就对职称外语考试提出了应坚持“三不”原则:“不一刀切”,即职称外语考试应按岗位需求,区别对待;“不一票否决”,即职称评聘应按思想品德、学术水平和能力业绩为主要标准,开展综合测评;“不一个模式”,即职称评聘应逐步与国际接轨。但这些有益的意见并没有在有关法律文件中体现。而对于从业资格的行政许可,《行政许可法》界定了应当是提供公众服务并且直接关系公共利益的职业、行业,需要确定具备特殊信誉、特殊条件或者特殊技能等资格、资质的事项的原则性标准。
最后,由于职称资格认定的制定程序随意性,缺乏一种可以比较明确的标准,并且制定的主体往往又是组织考试的实施主体,在实践中出现了不少问题。资深人力资源管理专家、管理学博士曹子祥说“像职称外语考试这一类的考试,在某种意义上已受到部门利益的驱动,形成了相应的利益分配体系。”而对于从业资格的行政许可,《行政许可法》明确规定,行政机关或者行业组织应当事先公布资格考试的报名条件、报考办法、考试科目以及考试大纲。但是,不得组织强制性的资格考试的考前培训,不得指定教材或者其他助考材料。这样就有效防止了部门谋利。
笔者呼吁,借此次众人对职称外语考试质疑的东风,一方面,有关主管部门应多听取民意,重新审视其的合理性,制定更加可行的规定;另一方面,立法机关也应考虑行政内部管理行为的各种职称资格认定存在的问题,加快立法步伐,尽快使职称资格认定向从业资格的行政许可接轨,将其用法律规范起来。
通联:江西省赣州市人民检察院 杨涛 华东政法学院法律硕士
邮编:341000
E?mail:tao1991@163.net tao9928@tom.com
LAW OF SUCCESSION OF THE PEOPLE'S REPUBLIC OF CHINA ——附加英文版
The National People's Congress
LAW OF SUCCESSION OF THE PEOPLE'S REPUBLIC OF CHINA
(Adopted at the Third Session of the Sixth National People's
Congress, promulgated by Order No. 24 of the President of the People's
Republic of China on April 10, 1985, and effective as of October 1, 1985)
Contents
Chapter I General Provisions
Chapter II Statutory Succession
Chapter III Testamentary Succession and Legacy
Chapter IV Disposition of the Estate
Chapter V Supplementary Provisions
Chapter I General Provisions
Article 1
This Law is enacted pursuant to the provisions of the Constitution of the
People's Republic of China with a view to protecting the right of citizens
to inherit private property.
Article 2
Succession begins at the death of a citizen.
Article 3
Estate denotes the lawful property owned by a citizen personally at the
time of his death, which consists of:
(1) his income;
(2) his houses, savings and articles of everyday use;
(3) his forest trees, livestock and poultry;
(4) his cultural objects, books and reference materials;
(5) means of production lawfully owned by him;
(6) his property rights pertaining to copyright and patent rights; and (7)
his other lawful property.
Article 4
Personal benefits accruing from a contract entered into by an individual
are heritable in accordance with the provisions of this Law. Contracting
by an individual, if permitted by law to be continued by the successor,
shall be treated in accordance with the terms of the contract.
Article 5
Succession shall, after its opening, be handled in accordance with the
provisions of statutory succession; where a will exists, it shall be
handled in accordance with testamentary succession or as legacy; where
there is an agreement for legacy in return for support, the former shall
be handled in accordance with the terms of the agreement.
Article 6
The right to inheritance or legacy of a competent person shall be
exercised on his behalf by his statutory agent.
The right to inheritance or legacy of a person with limited capacity shall
be exercised on his behalf by his statutory agent or by such person
himself after obtaining the consent of his statutory agent.
Article 7
A successor shall be disinherited upon his commission of any one of the
following acts:
(1) intentional killing of the decedent;
(2) killing any other successor in fighting over the estate;
(3) a serious act of abandoning or maltreating the decedent; or
(4) a serious act of forging, tampering with or destroying the will.
Article 8
The time limit for institution of legal proceedings pertaining to disputes
over the right to inheritance is two years, counting from the day the
successor became or should have become aware of the violation of his right
to inheritance. No legal proceedings, however, may be instituted after the
expiration of a period of 20 years from the day succession began.
Chapter II Statutory Succession
Article 9
Males and females are equal in their right to inheritance.
Article 10
The estate of the decedent shall be inherited in the following order:
First in order: spouse, children, parents.
Second in order: brothers and sisters, paternal grandparents, maternal
grandparents. When succession opens, the successor(s) first in order
shall inherit to the exclusion of the successor(s) second in order. The
successor(s) second in order shall inherit in default of any successor
first in order.
The "children" referred to in this Law include legitimate children,
illegitimate children and adopted children, as well as step-children who
supported or were supported by the decedent.
The "parents" referred to in this Law include natural parents and adoptive
parents, as well as step-parents who supported or were supported by the
decedent.
The "brothers and sisters" referred to in this Law include blood brothers
and sisters, brothers and sisters of half blood, adopted brothers and
sisters, as well as step-brothers and step-sisters who supported or were
supported by the decedent.
Article 11
Where a decedent survived his child, the direct lineal descendants of the
predeceased child inherit in subrogation. Descendants who inherit in
subrogation generally shall take only the share of the estate their father
or mother was entitled to.
Article 12
Widowed daughters-in-law or sons-in-law who have made the predominant
contributions in maintaining their parents-in-law shall, in relationship
to their parents-in-law, be regarded as successors first in order.
Article 13
Successors same in order shall, in general, inherit in equal shares.
At the time of distributing the estate, due consideration shall be given
to successors who are unable to work and have special financial
difficulties.
At the time of distributing the estate, successors who have made the
predominant contributions in maintaining the decedent or have lived with
the decedent may be given a larger share.
At the time of distributing the estate, successors who had the ability and
were in a position to maintain the decedent but failed to fulfil their
duties shall be given no share or a smaller share of the estate.
Successors may take unequal shares if an agreement to that effect is
reached among them.
Article 14
An appropriate share of the estate may be given to a person, other than a
successor, who depended on the support of the decedent and who neither can
work nor has a source of income, or to a person, other than a successor,
who was largely responsible for supporting the decedent.
Article 15
Questions pertaining to succession should be dealt with through
consultation by and among the successors in the spirit of mutual
understanding and mutual accommodation, as well as of amity and unity. The
time and mode for partitioning the estate and the shares shall be decided
by the successors through consultation. If no agreement is reached through
consultation, they may apply to a People's Mediation Committee for
mediation or institute legal proceedings in a people's court.
Chapter III Testamentary Succession and Legacy
Article 16
A citizen may, by means of a will made in accordance with the provisions
of this Law, dispose of the property he owns and may appoint a
testamentary executor for the purpose. A citizen may, by making a will,
designate one or more of the statutory successors to inherit his personal
property.
A citizen may, by making a will, donate his personal property to the state
or a collective, or bequeath it to persons other than the statutory
successors.
Article 17
A notarial will is one made by a testator through a notary agency.
A testator-written will is one made in the testator's own handwriting and
signed by him, specifying the date of its making.
A will written on behalf of the testator shall be witnessed by two or more
witnesses, of whom one writes the will, dates it and signs it along with
the other witness or witnesses and with the testator.
A will made in the form of a sound-recording shall be witnessed by two or
more witnesses.
A testator may, in an emergency situation, make a nuncupative will, which
shall be witnessed by two or more witnesses. When the emergency situation
is over and if the testator is able to make a will in writing or in the
form of a sound-recording, the nuncupative will he has made shall be
invalidated.
Article 18
None of the following persons shall act as a witness of a will:
(1) persons with no capacity or with limited capacity;
(2) successors and legatees; or
(3) persons whose interests are related to those of the successors and
legatees.
Article 19
Reservation of a necessary portion of an estate shall be made in a will
for a successor who neither can work nor has a source of income.
Article 20
A testator may revoke or alter a will he previously made.
Where several wills that have been made conflict with one another in
content, the last one shall prevail.
A notarial will may not be revoked or altered by a testator-written will,
a will written on behalf of the testator, a will in the form of a sound-
recording or a nuncupative will.
Article 21
Where there are obligations attached to testamentary succession or legacy,
the successor or legatee shall perform them. Anyone who fails to perform
the obligations without proper reasons may, upon request by a relevant
organization or individual, entail nullification of his right to
inheritance by a people's court.
Article 22
Wills made by persons with no capacity or with limited capacity shall be
void. Wills shall manifest the genuine intention of the testators; those
made under duress or as a result of fraud shall be void.
Forged wills shall be void.
Where a will has been tampered with, the affected parts of it shall be
void.
Chapter IV Disposition of the Estate
Article 23
After the opening of succession, a successor who has knowledge of the
death should promptly notify the other successors and the testamentary
executor. If one of the successors knows about the death or if there is no
way to make the notification, the organization to which the decedent
belonged before his death or the residents' committee or villagers'
committee at his place of residence shall make the notification.
Article 24
Anyone who has in his possession the property of the decedent shall take
good care of such property and no one is allowed to misappropriate it or
contend for it.
Article 25
A successor who, after the opening of succession, disclaims inheritance
should make known his decision before the disposition of the estate. In
the absence of such an indication, he is deemed to have accepted the
inheritance.
A legatee should, within two months from the time he learns of the legacy,
make known whether he accepts it or disclaims it. In the absence of such
an indication within the specified period, he is deemed to have disclaimed
the legacy.
Article 26
If a decedent's estate is partitioned, half of the joint property acquired
by the spouses in the course of their matrimonial life shall, unless
otherwise agreed upon, be first allotted to the surviving spouse as his or
her own property; the remainder shall constitute the decedent's estate.
If the decedent's estate is a component part of the common property of his
family, that portion of the property belonging to the other members of the
family shall first be separated at the time of the partitioning of the
decedent's estate.
Article 27
Under any of the following circumstances, the part of the estate affected
shall be dealt with in accordance with statutory succession:
(1) where inheritance is disclaimed by a testamentary successor or the
legacy is disclaimed by a legatee;
(2) where a testamentary successor is disinherited;
(3) where a testamentary successor or legatee predeceases the testator;
(4) where an invalidated portion of the will involves part of the estate;
or
(5) where no disposition is made under the will for part of the estate.
Article 28
At the time of the partitioning of the estate, reservation shall be made
for the share of an unborn child. The share reserved shall, if the baby is
stillborn, be dealt with in accordance with statutory succession.
Article 29
The partitioning of a decedent's estate shall be conducted in a way
beneficial to the requirements of production and livelihood; it shall not
diminish the usefulness of the estate.
If the estate is unsuitable for partitioning, it may be disposed of by
such means as price evaluation, appropriate compensation or co-ownership.
Article 30
A surviving spouse who remarries is entitled to dispose of the property he
or she has inherited, subject to no interference by any other person.
Article 31
A citizen may enter into a legacy-support agreement with a person who, in
accordance with the agreement, assumes the duty to support the former in
his or her lifetime and attends to his or her interment after death, in
return for the right to legacy. A citizen may enter into a legacy-support
agreement with an organization under collective ownership which, in
accordance with the agreement, assumes the duty to support the former in
his or her lifetime and attends to his or her interment after death, in
return for the right to legacy.
Article 32
An estate which is left with neither a successor nor a legatee shall
belong to the state or, where the decedent was a member of an organization
under collective ownership before his or her death, to such an
organization.
Article 33
The successor to an estate shall pay all taxes and debts payable by the
decedent according to law, up to the actual value of such estate, unless
the successor pays voluntarily in excess of the limit.
The successor who disclaims inheritance assumes no responsibility for the
payment of taxes and debts payable by the decedent according to law.
Article 34
The carrying out of a legacy shall not affect the payment of taxes and
debts payable by the legator according to law.
Chapter V Supplementary Provisions
Article 35
The people's congress of a national autonomous area may, in accordance
with the principles of this Law and the actual practices of the local
nationality or nationalities with regard to property inheritance, enact
adaptive or supplementary provisions. Provisions made by autonomous
regions shall be reported to the Standing Committee of the National
People's Congress for the record. Provisions made by autonomous
prefectures or autonomous counties shall become effective after being
reported to and approved by the standing committee of the people's
congress of the relevant province or autonomous region and shall be
reported to the Standing Committee of the National People's Congress for
the record.
Article 36
For inheritance by a Chinese citizen of an estate outside the People's
Republic of China or of an estate of a foreigner within the People's
Republic of China, the law of the place of domicile of the decedent shall
apply in the case of movable property; in the case of immovable property,
the law of the place where the property is located shall apply. For
inheritance by a foreigner of an estate within the People's Republic of
China or of an estate of a Chinese citizen outside the People's Republic
of China, the law of the place of domicile of the decedent shall apply in
the case of movable property; in the case of immovable property, the law
of the place where the property is located shall apply. Where treaties or
agreements exist between the People's Republic of China and foreign
countries, matters of inheritance shall be handled in accordance with such
treaties or agreements.
Article 37
This Law shall go into effect as of October 1, 1985.
Important Notice:
This English document is coming from "LAWS AND REGULATIONS OF THE
PEOPLE'S REPUBLIC OF CHINA GOVERNING FOREIGN-RELATED MATTERS" (1991.7)
which is compiled by the Brueau of Legislative Affairs of the State
Council of the People's Republic of China, and is published by the China
Legal System Publishing House.
In case of discrepancy, the original version in Chinese shall prevail.