Determination and Attribution of Disciplinary Responsibility of the CPC

Between violation and punishment, responsibility is an important logical link. Punishment is a disadvantage imposed on a person, which should be conditional on the prior existence of an act subject to punishment. However, the fact that a subject has committed a violation does not necessarily mean that it should be punished; imposing punishment on a subject usually requires the justification that the subject should bear responsibility for its act. This is the general principle of accountability. The same applies in the work of Party disciplinary sanctions. With the development of disciplinary sanction practice and the deepening of understanding of the laws governing Party disciplinary work, the concept of disciplinary responsibility of the CPC has gradually emerged from between “violation of discipline” and “sanction,” becoming an independent normative element. This also makes the determination and attribution of disciplinary responsibility of the CPC a key link in the work of Party disciplinary sanctions.

在违规与惩罚之间，责任是重要的逻辑环节。惩罚是一种施加于人的不利益，当以在此之前存在一个应受处罚的行为为条件，但一个主体实施了违规行为，并不必然意味着其应当受到惩罚，向一个主体施加惩罚，通常需要以该主体应为其行为承担责任为正当性前提，这是责任追究的一般原理。在党纪处分工作中也是如此，随着党纪处分实践的发展以及对党纪工作规律认识的加深，党纪责任概念逐步从“违纪”与“处分”之间析出，成为一个独立的规范要素，这也使得党纪责任的认定与归结成为党纪处分工作的关键环节。

At present, there is no specialized and systematic theoretical research on the determination and attribution of disciplinary responsibility of the CPC. However, general discussions on responsibility in the study of the basic categories of intra-Party regulations provide important references for understanding the determination and attribution of disciplinary responsibility of the CPC. In addition, in theoretical and practical discussions on violations of discipline and disciplinary sanctions, there are also some ideas on the elements of responsibility and their content, which provide relevant material and a good foundation for studying the determination and attribution of disciplinary responsibility of the CPC. Although the basic concept of disciplinary responsibility of the CPC already exists, questions such as what position disciplinary responsibility of the CPC occupies in the entire work of disciplinary sanctions, how to understand disciplinary responsibility of the CPC and its normative connotation, and how to construct a reasonable mechanism for the attribution of responsibility remain unresolved. Problems in the practice of supervision and discipline enforcement, such as arbitrary enforcement and the generalization of accountability, are also largely closely related to the fact that a unified, clear, and standardized mechanism for the attribution of responsibility has not yet been formed. This article will, from the perspective of normative science, based on the revision and development of the Regulations of the Communist Party of China on Disciplinary Sanctions (hereinafter referred to as the Regulations on Disciplinary Sanctions), combined with practical experience in the work of Party disciplinary sanctions, explore the internal mechanism of the determination and attribution of disciplinary responsibility of the CPC.

目前，关于党纪责任的认定与归结问题，尚无专门系统的理论研究。但党内法规基本范畴研究中关于责任的一般性讨论，为理解党纪责任认定与归结问题提供了重要参考。此外，在关于违纪与纪律处分的理论和实务研讨中，也有一些关于责任要件及其内容的设想，为研究党纪责任认定与归结问题提供了相关的素材和良好的基础。虽然已经有了党纪责任这个基础性概念，但党纪责任在整个纪律处分工作中居于何种地位，如何理解党纪责任及其规范内涵，如何构建合理的责任归结机制等，依然是悬而未决的问题。监督执纪实践中存在的执纪随意、问责泛化等问题，很大程度上也与尚未形成统一、明确、规范的归责机制密切相关。本文将从规范科学的角度，根据《中国共产党纪律处分条例》（以下简称《党纪处分条例》）的修订发展，结合党纪处分工作的实践经验，探索党纪责任认定与归结的内在机理。

I. The Position of Disciplinary Responsibility of the CPC in the Constitution of Violation of Discipline

一、党纪责任在违纪构成中的定位

Article 25 of the current Regulations on Disciplinary Sanctions uses the concept of “constitution of violation of discipline” but does not define its connotation. Referring to general principles in legal science, the constitution of violation of discipline can be understood as the conditions that must be met to determine whether a specific act constitutes a violation of discipline. The purpose of developing the theory of the constitution of violation of discipline is to provide scientific methods and standards for disciplinary inspection organs to understand violations of discipline and thereby pursue disciplinary responsibility of the CPC. Just as criminal law, in defining crime, “experienced a process of evolution from objective to the unity of subjective and objective,” the work of Party disciplinary sanctions, in determining violations of discipline, has also experienced a process from mainly focusing on the objective aspect to taking into account both “objective violation of rules” and “subjective culpability,” a unity of subjective and objective. The position of disciplinary responsibility of the CPC in the constitution of violation of discipline has gradually become prominent.

现行《党纪处分条例》第25条使用了“违纪构成”这一概念，但并没有界定其内涵。参考法学中的一般原理，可将违纪构成理解为决定某一具体行为是否构成违纪所必须具备的条件，发展违纪构成理论的目的在于为纪律检查机关认识违纪行为进而追究党纪责任提供科学的方法与标准。与刑法在界定犯罪的问题上“经历了一个从客观到主客观相统一的嬗变过程”一样，党纪处分工作在认定违纪的问题上，也经历了一个从主要注重客观方面到兼顾“客观违规性”和“主观有责性”的主客观相统一的过程，党纪责任在违纪构成中的地位也逐渐凸显出来。

As early as the implementation of the 1997 version of the Regulations of the Communist Party of China on Disciplinary Sanctions (Trial) (hereinafter referred to as the Regulations on Disciplinary Sanctions (Trial)) and the 2003 version of the Regulations on Disciplinary Sanctions, the issue of the constitution of violation of discipline began to attract the attention of some scholars and practical departments. The early mainstream theory of the constitution of violation of discipline was the “four-element theory” modeled on the criminal law theory of the constitution of crime. The “four-element theory” first divides the constitution of violation of discipline into two major categories: objective elements and subjective elements. Then, it further divides objective elements into the object of violation of discipline and the objective aspect of violation of discipline, and subjective elements into the subject of violation of discipline and the subjective aspect of violation of discipline. The subject of violation of discipline is considered to be Party organizations and Party members; the subjective aspect of violation of discipline is considered to be intent or negligence; the objective aspect of violation of discipline is violating the Party Constitution and other intra-Party regulations, violating national laws and regulations, violating Party and state policies, and violating socialist morality; the object infringed upon by the act of violation of discipline is the interests of the Party, the state, and the people. The “four-element theory,” composed of the subject of violation of discipline, the object of violation of discipline, the subjective aspect of violation of discipline, and the objective aspect of violation of discipline, became the epistemological tool for disciplinary inspection organs to define violations of discipline for a long period. During this period, disciplinary responsibility of the CPC also developed from a stage of conceptual vacancy to a stage of nominalization. Article 3 of the Regulations on Disciplinary Sanctions (Trial) stipulates: “All Party organizations and Party members of the Communist Party of China who violate Party discipline and should be subject to Party disciplinary sanctions shall be subject to these Regulations.” This clause directly connects “violation of discipline” with “sanction,” and the meaning of disciplinary responsibility of the CPC is wrapped within the concepts of violation of discipline and sanction, not yet separated into an independent consideration element. The 2003 version of the Regulations on Disciplinary Sanctions explicitly stipulates in the General Provisions that “any act that violates Party discipline must be investigated,” and “these Regulations apply to Party organizations and Party members who violate Party discipline and should be subject to Party disciplinary investigation.” After “violation of discipline,” the requirement of “should be subject to investigation” is added, but it does not clearly express what “should be subject to investigation” refers to. However, in the provisions of other chapters, the 2003 version of the Regulations on Disciplinary Sanctions mentions “disciplinary responsibility of the CPC” four times: “Those who instigate others to violate discipline or the law shall be investigated for disciplinary responsibility of the CPC according to the role they play in the joint violation of discipline”; “For acts of violation of discipline that are not stipulated in these Regulations but harm the interests of the Party, the state, and the people, and indeed require the investigation of disciplinary responsibility of the CPC, the most similar clause in the specific provisions shall be applied by analogy”; “If a Party member is subject to administrative punishment or administrative sanction according to law, and disciplinary responsibility of the CPC should be investigated”; “If a Party member violates national laws, regulations, or the rules and regulations of enterprises, public institutions, or other social organizations and is subject to other disciplinary sanctions, and disciplinary responsibility of the CPC should be investigated.” That is to say, the 2003 version of the Regulations on Disciplinary Sanctions has already explicitly emphasized the concept of “disciplinary responsibility of the CPC,” but it is only stipulated in individual circumstances, appearing as the object of “investigation,” and has not yet established “disciplinary responsibility of the CPC” as a basic category parallel and related to “violation of discipline” and “sanction.” The 2015 version of the Regulations on Disciplinary Sanctions also continues this setting.

早在1997年版《中国共产党纪律处分条例（试行）》（以下简称《党纪处分条例（试行）》）和2003年版《党纪处分条例》颁布实施时，违纪构成问题就开始为部分学者和实务部门所注意。早期主流的违纪构成理论，是模仿刑法犯罪构成理论所形成的“四要件说”。“四要件说”首先将违纪构成划分为客观要件和主观要件两大类，而后将客观要件进一步划分为违纪客体和违纪客观方面，将主观要件进一步划分为违纪主体和违纪主观方面。违纪主体被认为是党组织和党员；违纪主观方面被认为是故意或者过失；违纪客观方面是违反党章和其他党内法规，违反国家法律法规，违反党和国家政策，违反社会主义道德；违纪行为侵害的客体是党、国家和人民利益。由违纪主体、违纪客体、违纪主观方面、违纪客观方面组合而成的“四要件说”在很长一段时期成为纪律检查机关界定违纪的认识论工具。这一时期，党纪责任也从概念空缺阶段发展到有名化阶段。《党纪处分条例（试行）》第3条规定：“中国共产党的各级组织和党员，凡违犯党的纪律应当给予党的纪律处分的，都适用本条例。”该条款将“违纪”与“处分”直接相连，党纪责任意涵被包裹在违纪与处分概念之中，尚未析出成为一个独立的考量要素。2003年版《党纪处分条例》在总则部分明确规定“凡是违犯党纪的行为，都必须受到追究”，“本条例适用于违犯党纪应当受到党纪追究的党组织和党员”，在违纪之后增补了“应受追究”的要求，但是此处未明确表达“应受追究”的是什么。不过，在其他章节的规定中，2003年版《党纪处分条例》4次提及了“党纪责任”：“教唆他人违纪违法的，应当按照其在共同违纪中所起的作用追究党纪责任”；“对于本条例没有规定但危害党、国家和人民利益，确需追究党纪责任的违纪行为，比照分则中最相类似的条款处理”；“党员依法受到行政处罚、行政处分，应当追究党纪责任的”；“党员违反国家法律、法规、企事业单位或者其他社会组织的规章制度受到其他纪律处分，应当追究党纪责任的”。也就是说，2003年版《党纪处分条例》已经明确强调了“党纪责任”概念，但只是规定在个别情形中，作为“追究”的宾语出现，并未将“党纪责任”作为与“违纪”和“处分”并列关联的基本范畴。2015年版《党纪处分条例》也延续了这一设定。

The true elementization of Party discipline responsibility occurred in the 2018 edition of the *Regulations on Disciplinary Punishments of the Communist Party of China*. Article 6 of the General Provisions stipulates: "These Regulations apply to Party organizations and Party members who violate Party discipline and should be held accountable for Party discipline responsibility." This expression, as a general, overarching provision on the objects of disciplinary punishment, explicitly links "violation of discipline," "punishment," and "Party discipline responsibility" together, making Party discipline responsibility a constituent element and basic category of disciplinary punishment work. The logical process of disciplinary punishment work can be expressed as "violation of discipline—should be held accountable for Party discipline responsibility—punishment." The current *Regulations on Disciplinary Punishments of the Communist Party of China* continues this provision. In practice, the Central Commission for Discipline Inspection and the National Commission of Supervision, in their 2020 key research project "Research on the Application of Evidence in Discipline Inspection and Supervision," proposed the "two-tier system" theory of disciplinary violation composition, which holds that "violation + responsibility" constitutes a disciplinary violation. In 2021, the *Research on Discipline Inspection and Supervision Case Handling Practice*, edited by the Case Trial Office of the Central Commission for Discipline Inspection and the National Commission of Supervision, systematically introduced the "two-tier system" theory of disciplinary violation composition. This theory holds that any disciplinary violation is composed of both objective and subjective aspects. The objective aspect refers to the actor's conduct that violates the Party Constitution and other intra-Party regulations, national laws and regulations, Party and state policies, socialist morality, etc., specifically including the subject of the act, the harmful act, the object of harm, the harmful result, and causation—i.e., the "element of violation." The subjective aspect refers to the comprehensive consideration of various factors such as the actor's intent or negligence and capacity for responsibility, to determine whether the actor should bear corresponding disciplinary responsibility for this conduct, specifically including intent, negligence, capacity for responsibility, grounds for excluding responsibility, etc.—i.e., the "element of culpability." The "two-tier system" emphasizes that, in determining whether a disciplinary violation is constituted, the first step is to judge whether the objective "element of violation" is met, and the second step is to judge whether the subjective "element of culpability" is met, proceeding sequentially. Subsequently, the "two-tier system" theory of disciplinary violation composition began to attract widespread attention. Business books compiled by discipline inspection and supervision commissions at the central, local, and various levels, as well as case studies published in newspapers and magazines, increasingly applied the "two-tier system" theory to identify disciplinary violations and analyze disciplinary cases. Although the original "four-element theory" [2]2 The "four-element theory" (四要件说) is a traditional framework for analyzing the composition of a disciplinary violation, typically comprising the subject, the subjective aspect, the object, and the objective aspect. It is contrasted here with the newer "two-tier system" (两阶层体系) which separates the analysis into objective violation and subjective culpability. also required both objective and subjective elements, it lacked systematicity. Party discipline responsibility did not appear as an independent element; its content was fragmented and allocated separately to the two elements of the subject of the disciplinary violation and the subjective aspect of the disciplinary violation. Its "patchwork" nature was not conducive to making culpability judgments in a systematically coherent manner, and it also lacked hierarchy, with no requirement for sequential order, easily leading discipline enforcement personnel to prejudge the nature of the conduct based on the actor's psychological attitude and verbal confessions. The "two-tier system" theory of disciplinary violation composition adheres to the unity of the subjective and objective, clarifying that "a disciplinary violation requires both objective violation and subjective culpability." It not only grants the judgment of Party discipline responsibility a specialized constituent element status within the theory of disciplinary violation composition but also prescribes the logical sequence for judging objective violation and subjective culpability. This helps discipline inspection organs to objectively and accurately identify disciplinary violations, pursue Party discipline responsibility, and impose Party disciplinary punishments using more scientific methods and steps.

党纪责任真正要件化是在2018年版《党纪处分条例》当中，总则第6条规定：“本条例适用于违犯党纪应当受到党纪责任追究的党组织和党员。”该表述作为关于纪律处分适用对象的总则性、一般性、概括性规定，明确将“违纪”“处分”和“党纪责任”并列关联在一起，使得党纪责任成为党纪处分工作的构成要件和基本范畴。党纪处分工作的逻辑流程可以表述为“违纪—应当受到党纪责任追究—处分”。现行《党纪处分条例》延续了这一规定。实践中，中央纪委国家监委在2020年度重点调研课题“关于纪检监察证据适用问题研究”提出了“违规+有责”的“两阶层体系”违纪构成理论。2021年，中央纪委国家监委案件审理室主编的《纪检监察审理实务研究》系统介绍了“两阶层体系”违纪构成理论。“两阶层体系”违纪构成理论认为：任何违纪行为都是由客观和主观两个方面的内容构成的。客观方面的要素，是指行为人实施了违反党章和其他党内法规、国家法律法规、党和国家政策、社会主义道德等行为，具体包括行为主体、危害行为、危害对象、危害结果、因果关系等，即“违规性要素”；主观方面的要素，是指综合考虑行为人的故意或过失、责任能力等各种因素，认定行为人是否应当为此承担相应的纪律责任，具体包括故意、过失、责任能力、责任阻却事由等，即“有责性要素”。“两阶层体系”强调，判断是否构成违纪，第一步需先判断是否符合客观方面的“违规性要素”，第二步再判断是否符合主观方面的“有责性要素”，依次进行。之后，“两阶层体系”违纪构成理论开始引起广泛关注，中央和地方各级纪委监委编写的业务图书和报纸杂志登载的案例研讨中越来越多地运用“两阶层体系”违纪构成理论识别违纪行为，剖析违纪案例。原来的“四要件说”虽然也要求客观与主观要件都要具备，但缺乏体系性，党纪责任没有作为一个独立的要素出现，其内容被分割开来，分别分配到了违纪主体和违纪主观方面两个要件当中，其“拼装”的特点不利于以体系融贯的方式进行有责性判断，也缺乏阶层性，没有先后顺序要求，容易导致执纪执法人员根据行为人的心理态度和言辞口供，先入为主认定行为性质。“两阶层体系”违纪构成理论坚持主客观相统一，明确了“违纪行为需要同时具备客观违规性和主观有责性”，不但在违纪构成理论中赋予党纪责任判断以专门性构成要件地位，并且规定了客观违规性和主观有责性判断的逻辑序列，有助于纪律检查机关以更加科学的方法步骤客观准确地认定违纪行为，追究党纪责任，实施党纪处分。

Under the scientific method and thinking of the unity of the subjective and objective, combining "objective violation" and "subjective culpability," the normative connotation of Party discipline responsibility and its independent significance in the composition of disciplinary violations should receive greater attention. The key to the concept of responsibility lies in "blameworthiness." "So-called responsibility refers to the theoretical basis for reproaching the culpable person," that is, whether the actor can be censured for improper conduct. In legal philosophy, whether it is the theory of psychological responsibility, the theory of normative responsibility, or the theory of functional responsibility, the ultimate foundation lies in the fact that a subject's capacity for self-determination has not effectively formed a counter-motive against deviating from norms, thereby making the corresponding conduct blameworthy. The basis for evaluating responsibility is conduct, but the elements of responsibility evaluation are not the conduct itself, but rather the circumstances conveyed by the actor's conduct as to whether it is blameworthy. These are primarily subjective elements evaluated and judged through subjective aspects such as intent, negligence, motive, and purpose. The clarification of Party discipline responsibility as a constituent element and basic category first means that violation and responsibility are distinguished. As Professor Zhang Mingkai stated: "Distinguishing whether the conduct itself is legitimate (illegal) and whether the actor should be blamed (responsibility) can be said to be human nature, and even children can grasp this. When a two- or three-year-old child drops a bowl from the table and breaks it while eating, and the parents ask 'What happened?', almost all children in the same situation will say without exception, 'I didn't mean to' or 'I was careless.' At this point, the child absolutely will not argue that dropping the bowl and breaking it was correct or legitimate, but only argues that they have no responsibility or no intentional responsibility, hoping that their parents will not blame them." It can be seen that "violation of discipline" does not necessarily imply "responsibility." Using the concept of Party discipline responsibility to distinguish "violation of discipline" from "responsibility" makes the determination and attribution of Party discipline responsibility a key link in the evaluation of disciplinary violations and the discretion of disciplinary punishments. This helps discipline inspection and supervision organs carry out supervision and discipline enforcement work with more scientific and orderly thinking steps. The existence of conduct that violates Party rules and discipline only satisfies the preliminary element of disciplinary punishment work. The form of conduct and the result of conduct conforming to the conduct pattern of a disciplinary violation do not directly lead to a specific punishment outcome. Whether a disciplinary punishment should be imposed and what kind of disciplinary punishment should be imposed also require consideration of whether the actor's subjective aspect is blameworthy. Only when the actor's form of conduct or result objectively conforms to the conduct pattern of a disciplinary violation, and the actor subjectively has blameworthy or reproachable subjective elements such as fault, can the disciplinary punishment they should receive be derived based on the degree of their blameworthiness. This includes specific punishment and sanction methods, such as warning, serious warning, removal from Party posts, probation within the Party, and expulsion from the Party. These measures are precisely the specific forms of bearing or realizing Party discipline responsibility. It can be seen that Party discipline responsibility is an essential element of the composition of a disciplinary violation. Only after the determination and attribution of Party discipline responsibility confirms the existence of Party discipline responsibility does Party disciplinary punishment have a legitimate basis. Of course, the determination and attribution of Party discipline responsibility involves determining the existence, type, and degree of Party discipline responsibility, as well as the methods, standards, and principles by which Party discipline responsibility is attributed to the actor of the disciplinary violation. This is a complex process of factual analysis and value judgment, requiring comprehensive consideration of multiple elements and further detailed analysis.

在“客观违规性”和“主观有责性”相结合的主客观统一的科学方法与思维下，党纪责任的规范内涵及其在违纪构成中的独立意义更应受到重视。责任概念的关键在于“应受谴责性”。“所谓责任是指对有责人进行非难的理论根据”，即能否就不当行为对行为人发出责难。在法哲学上，无论是心理责任论、规范责任论还是功能责任论，最后的根基都在于，一个主体能够自我决定的意志没有有效形成对于背离规范的反对动机，从而使相应的行为具有了可谴责性。责任评价的基础是行为，但责任评价的要素却并非行为本身，而是行为人行为中所传达的是否应受谴责的情况，是主要通过故意、过失、动机、目的等主观方面予以评价和判断的主观性要素。党纪责任作为构成要件和基本范畴的明确，首先意味着违规与责任被区分开来。如张明楷教授所言：“区分行为本身是否正当（违法）以及应否谴责行为人（责任），可谓人的天性，连儿童也能够把握这一点。两三岁的儿童在桌上吃饭时将碗掉在地上打碎了，当父母问‘怎么回事’时，处于相同情景下的所有儿童几乎无一例外地会说‘我不是故意的’‘我是不小心的’。儿童此时绝对不会辩解说将碗掉在地上打碎是正确的、正当的，而只是辩解自己没有责任或没有故意责任，希望父母不要谴责自己。”可见，“违纪”并不必然意味着“有责”，用党纪责任概念将“违纪”与“责任”区别开来，使得党纪责任的认定与归结成为违纪行为评价和纪律处分裁量的关键环节，有助于纪检监察机关以更为科学有序的思维步骤开展监督执纪工作。存在违反党规党纪的行为，只是满足了党纪处分工作的初步要件，行为形态和行为结果符合违纪行为的行为模式，并不直接导出具体的处分后果，是否应当予以党纪处分以及予以何种党纪处分，还要考量行为人主观方面是否具备可谴责性。行为人的行为形态或结果在客观上符合违纪行为模式，同时主观上具有过错等应受谴责或非难的主观要素，才可以根据其应受谴责的程度，导出其应受的党纪处分，即具体惩罚和制裁方式，包括警告、严重警告、撤销党内职务、留党察看和开除党籍等处分措施，这些措施正是党纪责任的具体承担或实现方式。可见，党纪责任是违纪构成的必备要素，只有经党纪责任的认定与归结之后确认存在党纪责任，党纪处分才具有正当性依据。当然，党纪责任的认定与归结涉及认定党纪责任的有无、类型与程度，以及以何种方式、标准和原则将党纪责任归结于违纪行为人，是一个复杂的事实分析和价值判断过程，需要综合考量多种要素，尚需详加分析。

II. Basic Elements of the Determination and Attribution of Party Discipline Responsibility

二、党纪责任认定与归结的基本要素

From the current *Regulations on Disciplinary Punishments of the Communist Party of China* and related provisions, the basic elements for the determination and attribution of Party discipline responsibility that have been clarified in current disciplinary punishment work can be outlined.

从现行《党纪处分条例》及相关规定中，可以勾勒出当前党纪处分工作已经明确的党纪责任认定与归结的基本要素。

(A) The Issue of Capacity for Responsibility

（一）责任能力问题

The basis for bearing responsibility is the existence of a responsible subject. A responsible subject refers to a person who has violated a certain obligation and must therefore bear corresponding responsibility. To hold a violator of discipline responsible for their conduct, it is usually also required that they have the corresponding capacity for responsibility. Only with the corresponding capacity for discernment and control is there a causal link between their thoughts and conduct, enabling them to understand the conduct they are carrying out and its possible consequences. Imposing punishment on a person lacking the corresponding capacity for discernment and control is both meaningless and inhumane.

承担责任的基础，是有责主体的存在。责任主体是指违反某种义务因而必须承担相应责任的人。而要让违纪者为自己的行为承担责任，通常还要求其具有相应的责任能力。只有具备相应的辨识和控制能力，他的思想和行为之间才有因果联系，他才能够认识到自己所实施的行为及其可能的后果，而对不具备相应辨识和控制能力的人实施惩罚，既无意义，也不人道。

The current *Regulations on Disciplinary Sanctions of the Communist Party of China* (hereinafter *Disciplinary Regulations*) contain no explicit provisions on the capacity for Party discipline responsibility, but this can be interpreted systematically in conjunction with other relevant provisions. The basis of responsibility capacity is the actor’s ability to discern and control their own conduct; the main factors affecting responsibility capacity are age and mental health status. First, from the perspective of age, based on the explicit provisions of the Party Constitution, Party members must be adults aged 18 or above, whose mental faculties are generally mature, who possess considerable social knowledge and experience, and who are often advanced elements in a given field. They must also pass through multiple stages of assessment, including application, evaluation, probation, and formal membership. It can therefore be considered that they already possess the corresponding ability to discern and control their conduct. Thus, in a general sense, it can be determined that a Party member possesses the capacity for Party discipline responsibility from the moment they join the Party. Second, from the perspective of mental health status, there are indeed some exceptional cases. For example, if a Party member suffers from a mental illness, their ability to discern and control their conduct may be lost or impaired. If they commit harmful conduct while unable to discern or control their own actions, imposing sanctions on them would neither achieve the goals of punishment and education nor conform to our Party’s organizational principle of caring for and helping comrades in difficulty.

现行《党纪处分条例》没有关于党纪责任能力的明确规定，但可以结合其他相关规定进行体系性解释。责任能力的基础是行为人对自己行为的辨识和控制能力，影响责任能力的因素主要有年龄和精神健康状况。首先，从年龄的角度来看，基于党章的明确规定，党员须是年满十八周岁以上的成年人，心智一般已发育成熟，具备相当的社会知识经验，且往往是某一领域的先进分子，并须通过申请、考核、预备、转正等多个阶段的考察，可以认为已具备相应的辨识和控制能力，因此，在一般意义上，可以认定，党员自入党始，即具有党纪责任能力。其次，从精神健康状况角度来看，确实存在一些例外情况，如党员罹患精神病，辨识和控制能力可能丧失或减弱，若其在不能辨识和控制自己行为的时候实施具有危害性的行为，对其进行惩戒，既无法达到惩罚与教育的目的，也不符合我们党关爱困难党员、帮助困难同志的组织原则。

In practice, as an interpretive application of the rules on Party disciplinary sanctions, the Central Commission for Discipline Inspection has issued several opinions on how to handle cases where a Party member with a mental illness commits errors: (1) If a Party member with a mental illness, due to a severe disturbance of mental activity, is unable to discern or control their own conduct at the time of committing harmful conduct, such conduct does not constitute a violation of Party discipline and is not subject to Party disciplinary investigation; (2) If a Communist Party member violates Party discipline and, upon assessment, is found to have been suffering from a mental illness at the time of the violation, such that due to the disturbance of mental activity they were unable to fully discern or fully control their own conduct, a Party disciplinary sanction shall be imposed in accordance with relevant provisions, but the sanction shall be mitigated or reduced; if the violation is minor, the sanction may be waived; (3) If a Party member with an intermittent mental illness violates Party discipline while in a normal mental state, or if a Party member falls ill with a mental illness only after committing a violation, a Party disciplinary sanction must be imposed in accordance with relevant provisions. This reply opinion distinguishes among three situations—being unable to discern and control one’s conduct, being unable to fully discern and control one’s conduct, and conduct occurring in a normal mental state—and handles differentially whether a Party member with a mental illness should bear responsibility for a violation and how that responsibility should be borne. In effect, it treats the capacity for Party discipline responsibility as the foundation for the investigation and assumption of Party discipline responsibility.

实践中，作为对党纪处分规则的适用性解释，中央纪委对患精神疾病的党员犯有错误应如何处理明确了几条意见：（1）患有精神疾病的党员，由于严重的精神活动障碍，致使不能辨认或者不能控制自己行为时实施了危害行为的，不构成违犯党纪错误，不受党的纪律的追究；（2）共产党员违犯党纪，经鉴定在违纪时患有精神疾病，由于精神活动障碍，致使不能完全辨认或者不能完全控制自己行为的，根据有关规定给予党纪处分，但应当从轻或减轻处分；违纪情节较轻的，可以免予处分；（3）患有间歇性精神疾病的党员在精神正常时违犯党纪，以及违纪后才患有精神疾病的党员，必须根据有关规定给予党纪处分。该答复意见按照不能辨认和控制自己的行为、不能完全辨认和控制自己的行为、精神正常时的行为三种情况，对患有精神疾病的党员违纪是否应当承担责任、如何承担责任进行了区别处理，事实上将党纪责任能力作为党纪责任追究和承担的基础。

(II) Subjective Fault Factor

（二）主观过错因素

Subjective fault refers to the actor’s subjective mental state at the time of committing the disciplinary violation, generally including intent and negligence. “Objective violation of rules” primarily concerns judgment at the level of objective conduct, while “subjective culpability” primarily concerns judgment at the level of the actor’s subjective psychology and thinking. Since the core meaning of the concept of responsibility lies in “blameworthiness,” the key aspect of determining and attributing Party discipline responsibility lies in how to treat the issue of fault.

主观过错是指行为人实施违纪行为时的主观心理状态，一般包括故意和过失两种。“客观违规性”主要是对客观行为层面的判断，“主观有责性”则主要是对行为人主观心理、思维层面的判断。由于责任概念的核心义项就在于“应受谴责性”，因此，党纪责任认定与归结的关键方面就在于如何对待过错的问题。

Theoretically, there are differing opinions on whether the determination and attribution of Party discipline responsibility should be conditioned on subjective fault. Some argue that Party disciplinary sanctions are relatively minor punitive measures, and that the rights diminished and obligations imposed by such sanctions are limited to the scope of Party member rights and Party member obligations, without directly affecting the personal or property rights of Party members, and thus do not cause significant detriment to the Party member. At the same time, once a Party member objectively commits a violation, subjective fault generally exists naturally, so there is no need to specifically analyze and confirm the actor’s subjective mental state as a prerequisite for responsibility investigation. This view fails to recognize that Party disciplinary sanctions are extremely serious organizational acts and very severe political punishments. They not only affect the Party member’s reputation but also “involve the Party member’s democratic rights and even their political life.” [3]3 This phrasing reflects the official position that Party disciplinary sanctions are not merely administrative but affect a member’s political standing and rights within the Party. The detriment they cause far exceeds that of administrative sanctions such as detention or fines. Therefore, the claim that Party disciplinary sanctions are minor punitive measures should not be used as a reason to disregard subjective fault. Another view holds that the Communist Party of China is a vanguard party, that Party discipline responsibility is a form of political responsibility, and that Party rules and discipline are themselves stricter than state law, imposing higher standards and stricter requirements on Party organizations and Party members. According to this view, as long as the actor objectively commits a disciplinary violation, they have violated the Party’s vanguard nature, and disciplinary responsibility can be investigated without considering subjective fault. The problem with this view is that it confuses the mode of distributing responsibility with the mode of investigating responsibility. Party rules and discipline impose more and higher obligations on Party members than on ordinary citizens; this is a mode of distributing responsibility based on the Party’s nature. Whether subjective fault is a condition, however, concerns the mode of investigating responsibility. The key point is that only by evaluating differently conduct committed by Party members based on different subjective mental states can we achieve proportionality between fault and punishment, and fairness and balance in reason and sentiment.

在理论上，对于党纪责任的认定与归结是否应以主观过错为条件，存在一些不同意见。有观点认为，党纪处分属于较为轻微的制裁措施，而且党纪处分所减损的权利和课加的义务仅限于党员权利和党员义务的范畴，并不直接处分党员的人身和财产权利，不会给党员带来显著的不利益。同时，党员一旦客观上出现违规行为，主观上一般自然就存在过错，因此，不必专门分析和确认违纪主体的主观心理状态作为责任追究的前提。这种观点没有意识到，党纪处分是极其严肃的组织行为，是非常严厉的政治制裁，不仅关系到党员的名誉，还“涉及党员的民主权利甚至政治生命”，其所带来的不利益远甚于拘留、罚款等行政处罚类的制裁，不应将党纪处分属于轻微惩戒措施作为不考虑主观过错的理由。还有观点认为，中国共产党是先锋队政党，党的纪律责任是一种政治责任，党规党纪本身就严于国家法律，对党组织和党员提出了更高标准更严要求，只要行为人客观上存在违纪行为，就是违反了党的先进性要求，就可以追究纪律责任，不必考虑主观过错。这种观点的问题在于，混淆了责任的分配方式和责任的追究方式。党规党纪向党员课以比一般公民更多更高的义务，这是基于党的性质的责任分配方式。而是否以主观过错为条件，则是责任的追究方式。关键在于，对于党员基于不同的主观心理状态实施的行为予以不同的评价，才能实现过罚相当、情理均平。

Neither the *Disciplinary Regulations (Trial)* nor the 2003, 2015, and 2018 versions of the *Disciplinary Regulations* explicitly make subjective fault a basic element in the determination and attribution of Party discipline responsibility. However, in the specific provisions of these versions of the *Disciplinary Regulations*, there are some expressions concerning subjective elements in the stipulations on certain specific patterns of disciplinary violations. These can be roughly divided into three situations: first, where the actor’s subjective fault is explicitly required, such as “intentional” types of violations; second, where subjective fault is considered a factor in the severity of the sanction, such as differential treatment of violations committed “knowingly” versus those committed “without understanding the true circumstances”; third, where subjective fault is not considered, such as for certain serious violations, where the definition of the violation pattern neither considers the presence or type of subjective fault nor distinguishes between different subjective mental states in applying rules for mitigating sanctions.

《党纪处分条例（试行）》和2003年版、2015年版和2018年版《党纪处分条例》都没有明确将主观过错作为党纪责任认定与归结的基本要件。不过，在这几个版本的《党纪处分条例》分则中，对于某些具体违纪行为模式的规定中存在一些关于主观要素的表达，大致有三种情况：一是明确要求行为人存在主观过错，如“故意类”违纪；二是将主观过错作为处分轻重的考虑因素，如对“明知”与“不明真相”类违纪进行区别处理；三是不考虑主观过错，如对于某些严重的违纪，违纪行为模式的设定既不考虑主观过错的有无与类型，也不区分不同的主观心理状态适用减轻处分规则。

A major change in the current *Disciplinary Regulations* is the explicit provision in Article 19, within Chapter III “Rules on the Application of Sanctions,” which states: “If a Party member’s conduct causes losses or consequences, but is not due to intent or negligence, but rather is caused by force majeure or other reasons, Party discipline responsibility shall not be investigated.” This provision is a conditional proposition, and its logical structure can be clearly presented through propositional analysis:

现行《党纪处分条例》的一个重大变化，就是在第三章“纪律处分运用规则”的第19条明确规定：“党员行为虽然造成损失或者后果，但不是出于故意或者过失，而是由于不可抗力等原因所引起的，不追究党纪责任。”该条款是一个条件型命题，可以通过命题分析清晰呈现其逻辑结构：

p: due to intent or negligence;

p：出于故意或者过失；

not-p: not due to intent or negligence;

非p：不是出于故意或者过失；

q: investigate Party discipline responsibility;

q：追究党纪责任；

not-q: do not investigate Party discipline responsibility.

非q：不追究党纪责任。

It is now known that if it is not due to intent or negligence, Party discipline responsibility is not investigated, i.e., “if not-p, then not-q” is a true proposition. According to the logical derivation rules of propositions, “if q, then p” should also be a true proposition, i.e., if Party discipline responsibility is investigated, then it is due to intent or negligence. Article 19, through the legislative technique of conditional propositions, incorporates subjective fault—that is, intent or negligence—into the factors considered in investigating Party discipline responsibility. The authoritative interpretation by the Central Commission for Discipline Inspection and the National Commission of Supervision regarding the revision of the *Disciplinary Regulations* also interprets this provision as meaning that “conduct without intent or negligence does not lead to the investigation of Party discipline responsibility.” [4]4 The Central Commission for Discipline Inspection (CCDI) and the National Commission of Supervision are the highest Party disciplinary and state anti-corruption bodies in China. Subjective fault has become a prerequisite for investigating responsibility. Whether Party discipline responsibility should be investigated, and what kind of responsibility should be investigated, requires consideration of the presence and type of subjective fault.

现在已知，不是出于故意或者过失，不追究党纪责任，即“若非p，则非q”为真命题，根据命题的逻辑推导规律，“若q，则p”也当为真命题，即若追究党纪责任，则是出于故意或者过失。第19条运用条件命题的立规技术，将主观过错，也即故意或过失，纳入了党纪责任追究的考量因素。中央纪委国家监委关于党纪处分条例修订的权威解读，也将该条款解读为“没有故意或过失的行为不追究党纪责任”。主观过错成为责任追究的前提，是否应当追究党纪责任，追究何种责任，需要考量主观过错的有无与类型。

(III) Grounds for Excluding Responsibility

（三）责任阻却事由

Generally, when a disciplinary violation occurs, Party discipline responsibility arises, and the actor should bear that responsibility. However, during this process, the presence of certain specific factors may exclude the investigation of Party discipline responsibility. These specific factors that exclude the investigation of Party discipline responsibility are grounds for excluding responsibility. In addition to incorporating subjective fault into the factors considered in investigating Party discipline responsibility, Article 19 of the current *Disciplinary Regulations* also explicitly designates force majeure and other reasons as grounds for excluding Party discipline responsibility.

一般而言，违纪行为出现，党纪责任产生，行为人即应当承担党纪责任，但是，在此过程当中，某些特定因素的存在会阻却党纪责任的追究，这种排斥党纪责任追究的特定因素就是责任阻却事由。现行《党纪处分条例》第19条除了将主观过错纳入党纪责任追究的考量因素外，还明确将不可抗力等原因作为党纪责任的阻却事由。

Force majeure is an ancient legal term. As a normative concept, it originated in Roman law. Roman law, considering that force majeure is unrelated to a person’s subjective will and based on the principle of fairness, allowed a debtor to claim a defense of exemption based on force majeure. Today, force majeure has become a statutory ground for exemption universally recognized in the legislation of countries around the world. For example, Article 16 of China’s Criminal Law stipulates: “An act that objectively results in harmful consequences, but is not committed intentionally or negligently, but rather due to irresistible or unforeseeable causes, is not a crime.” Article 180 of China’s Civil Code stipulates: “If a person is unable to perform a civil obligation due to force majeure, he shall not bear civil liability.” From the logical structure of its provisions, the Regulations on Disciplinary Sanctions of the Communist Party of China [5]5 The Regulations on Disciplinary Sanctions of the Communist Party of China (《中国共产党纪律处分条例》) are the primary internal Party regulation governing disciplinary violations and sanctions for members of the Chinese Communist Party. Multiple versions have been issued (e.g., trial, 2015, 2018, 2023). have absorbed and drawn on the expression of force majeure exemption in criminal law and civil law, establishing norms for the exemption of disciplinary responsibility within the CPC due to force majeure.

不可抗力是一个古老的法律术语，作为一个规范性概念，它最早来自罗马法，是罗马法考虑到不可抗力与人的主观意志无关，基于公平性的原理，允许债务人依据不可抗力进行免责抗辩。如今，不可抗力已经成为世界各国立法所普遍确认的法定免责事由。如我国《刑法》第16条规定：“行为在客观上虽然造成了损害结果，但是不是出于故意或者过失，而是由于不能抗拒或者不能预见的原因所引起的，不是犯罪。”我国《民法典》第180条规定：“因不可抗力不能履行民事义务的，不承担民事责任。”从条文的逻辑结构来看，《党纪处分条例》正是吸收和借鉴了刑法和民法关于不可抗力免责的表达方式，设定了党纪责任不可抗力免责规范。

As a ground for barring responsibility, the connotation of force majeure has gradually gained a relatively clear understanding and expression in practice, and is generally considered to be “an objective situation that is unforeseeable, unavoidable, and insurmountable.” Generally speaking, “unforeseeable” means that, based on the current level of technology, there is no ability to predict the occurrence of a certain event; “unavoidable and insurmountable” means that the party concerned has exerted their utmost efforts but still cannot avoid the occurrence of a certain event or overcome the consequences caused by the event. In practice, the manifestations of force majeure that can achieve consensus mainly fall into two categories: first, natural disasters caused by natural causes, such as droughts, earthquakes, landslides, typhoons, floods, plagues, etc.; second, abnormal events caused by social causes, such as states of emergency, war, etc. If a Party member’s conduct causes losses or consequences, but it is not intentional or negligent, but rather caused by these unforeseeable, unavoidable, and insurmountable objective situations, disciplinary responsibility within the CPC may not be pursued.

作为责任阻却事由，不可抗力的内涵在实践中也逐渐获得了相对清晰的理解和表达，通常被认为是“不能预见、不能避免且不能克服的客观情况”。一般来说，不能预见，是指根据现有的技术水平，对某事件发生没有预知能力；不能避免且不能克服，是指当事人已经尽到最大努力，仍然不能避免某一事件的发生、不能克服事件造成的后果。实践中，能够获得共识的不可抗力表现形态主要有两类：一是由自然原因引起的自然灾害，如旱灾、地震、山崩、台风、洪水、瘟疫等；二是由社会原因引起的异常事件，如紧急状态、战争等。如果党员的行为造成损失或者后果，但不是出于故意或者过失，而是由于这些不能预见、不能避免且不能克服的客观情况所引起的，可以不予追究党纪责任。

As a ground for barring disciplinary responsibility within the CPC, the judgment of force majeure requires attention to the following: First, whether a certain objective situation, even a natural disaster, constitutes force majeure still requires case-by-case analysis. For instance, if a certain area experiences a severe drought disaster that has not occurred before, it may constitute force majeure; however, for flood disasters that occur regularly during the summer flood season in a certain area, Party members and cadres bearing corresponding management responsibilities should have foreseen them but did not, and thus cannot claim exemption based on force majeure. Second, force majeure as a ground for barring disciplinary responsibility within the CPC does not mean that Party members can wash their hands of the matter and do nothing in the face of unforeseeable, unavoidable, and insurmountable objective situations. For example, in the case of natural disasters, Party members bearing corresponding management responsibilities should actively take forward-looking preventive measures before the disaster arrives, and promptly take necessary measures after the disaster occurs to avoid further expansion of losses. If they neglect prevention beforehand, it still constitutes a negligent disciplinary violation, and they cannot be exempted by force majeure; if they fail to fulfill their duty to mitigate losses afterward, they likewise cannot be exempted by force majeure and should bear responsibility for the resulting expansion of losses.

作为党纪责任的阻却事由，对不可抗力的判断需要注意：第一，某一客观情况，哪怕是自然灾害，是否构成不可抗力仍然需要具体情况具体分析。譬如，某地遭遇此前没有出现过的严重干旱灾害，或可构成不可抗力；而对于某地每年夏季汛期都会出现的洪涝灾害，承担相应管理职责的党员干部应当预见而没有预见，则不得据此主张不可抗力免责。第二，不可抗力作为党纪责任的阻却事由，并不意味着党员在不能预见、不能避免且不能克服的客观情况面前可以撒手不管、无所作为。譬如对于自然灾害，承担相应管理责任的党员应当在灾害到来之前积极采取前瞻性的预防措施，在灾害发生后及时采取必要措施避免损失进一步扩大。如果事前疏于预防，则仍然构成过失型违纪，不能以不可抗力免责；如果事后没有尽责减损，同样不能以不可抗力免责，而应承担导致损失扩大的责任。

(4) Requirement of Proportionality of Responsibility

（四）责任相当要求

When determining and attributing responsibility, it is necessary to treat the same circumstances equally and ensure that the fault is commensurate with and proportional to the punishment. This is the most basic requirement of the principle of fairness and justice in the field of responsibility. Regarding the proportionality of responsibility, the Regulations on Disciplinary Sanctions of the Communist Party of China have established normative requirements at three levels:

在进行责任认定与归结时，要做到同等情况同等对待，过错与惩罚相适应、成比例，这是公平正义原则在责任领域最基本的要求。在责任相当方面，《党纪处分条例》构建了三个层面的规范要求：

First, the requirement of equal application. Since the Trial Regulations on Disciplinary Sanctions of the Communist Party of China, disciplinary sanction work has clearly adhered to the principle of equality before Party discipline. Subsequently, the 2015 version of the Regulations on Disciplinary Sanctions of the Communist Party of China put forward requirements such as “Party organizations and Party members who violate Party discipline must be subject to serious and fair enforcement of discipline.” The 2018 version and the current version of the Regulations on Disciplinary Sanctions of the Communist Party of China have continued this provision. Equal application provides principled constraints to eliminate problems such as those at fault not receiving due punishment, the innocent receiving undeserved punishment, disproportion between fault and punishment, and excessively lenient or severe punishment.

其一，平等适用要求。自《党纪处分条例（试行）》开始，党纪处分工作就明确坚持党纪面前一律平等原则，之后2015年版《党纪处分条例》又提出了“对违犯党纪的党组织和党员必须严肃、公正执行纪律”等要求，2018年版和现行《党纪处分条例》延续了这一规定。平等适用为杜绝出现有错者没有受到应有的惩罚、无辜者受到不该有的处罚、过错与惩罚不相当、处罚畸轻畸重等问题提供了原则约束。

Second, the requirement of appropriate handling. In the Trial Regulations on Disciplinary Sanctions of the Communist Party of China, there were requirements such as “when handling acts that violate Party discipline, the facts shall be taken as the basis, the nature of the error shall be accurately determined, different circumstances shall be distinguished, and, in accordance with the provisions of these Regulations, disciplinary sanctions shall be appropriately imposed on Party members and Party organizations that have committed errors.” Subsequent versions of the Regulations on Disciplinary Sanctions of the Communist Party of China have also, in the basic principles section of Party disciplinary sanction work, clarified under the principle of “seeking truth from facts” requirements such as accurately determining the nature of the disciplinary violation (act), distinguishing different circumstances, and handling appropriately. Although the expression “distinguishing different circumstances and handling appropriately” is relatively broad, it also conveys the meaning that Party disciplinary sanctions should be treated differently based on the facts, nature, and circumstances of the disciplinary violation, conforming to the principle of proportionality between fault and punishment. Furthermore, the Regulations on Accountability of the Communist Party of China (hereinafter referred to as the Accountability Regulations), which are closely related to disciplinary sanction work and usually need to be applied in conjunction, also explicitly made “proportionality of fault and responsibility” a basic principle of accountability work when revised in 2019.

其二，恰当处理要求。《党纪处分条例（试行）》中，就有“处理违犯党纪的行为，应当以事实为依据，准确地认定错误性质，区别不同情况，依照本条例的规定，恰当地给犯错误的党员和党组织以纪律处分”等要求。之后各版《党纪处分条例》，也都在党的纪律处分工作的基本原则部分，在“实事求是”原则下明确了准确认定违纪（行为）性质，区别不同情况，恰当予以处理等要求。“区别不同情况，恰当予以处理”的表述虽然较为宽泛，但也表达了党纪处分要根据违纪行为的事实、性质和情节的不同而区别对待的意思，符合过罚相当的原则要求。此外，与纪律处分工作关系密切且通常需要关联适用的《中国共产党问责条例》（以下简称《问责条例》），也在2019年修订时明确将“错责相当”作为问责工作的基本原则。

Third, the requirement of distinguishing severity. The current version of the Regulations on Disciplinary Sanctions of the Communist Party of China further distinguishes different situations such as general disciplinary violations, minor disciplinary violations, and non-pursuit of disciplinary responsibility within the CPC within the rules for the application of disciplinary sanctions. It adds provisions for handling “Party members who have nascent or tendentious issues in work style and discipline, or whose violations of Party discipline are minor in circumstances” through the first form of supervision and discipline enforcement [6]6 The “first form” refers to the first and mildest of the “four forms” of supervision and discipline enforcement under the CPC’s internal supervision system, typically involving measures such as criticism, education, or admonishment, rather than formal sanctions., as well as specific situations where disciplinary responsibility within the CPC is not pursued for acts without intent or negligence, thereby developing norms for distinguishing proportionality based on severity.

其三，轻重区分要求。现行《党纪处分条例》在纪律处分运用规则中进一步区分了一般违纪、轻微违纪、不追究党纪责任等不同情形，增加了对“党员有作风纪律方面的苗头性、倾向性问题或者违犯党纪情节轻微的”给予监督执纪的第一种形态处理，以及对没有故意或过失的行为不追究党纪责任的具体情形，发展了轻重有别的相当性区别规范。

Among legal theories on how to determine and attribute responsibility, the principle of culpability has a significant influence. The principle of culpability advocates that when imposing sanctions, consideration must be given to “capacity for responsibility,” “conditions of responsibility,” and “proportionality of responsibility.” Capacity for responsibility refers to the actor’s ability to discern and control; conditions of responsibility refer to the actor’s subjective fault; proportionality of responsibility refers to the proportionality between the punishment imposed on the actor and their fault. The current version of the Regulations on Disciplinary Sanctions of the Communist Party of China effectively takes capacity for responsibility as the basis of responsibility, treats subjective fault as the content of responsibility for disciplinary violations with harmful consequences, and treats proportionality of responsibility as a requirement of proportionality. Therefore, it can be said that, following criminal sanctions and administrative penalties, Party disciplinary sanctions have also basically accepted the principle of culpability as a principle of imputation. The implementation of the principle of culpability in Party disciplinary sanctions is the result of the scientific application of the methodological principle of unifying the subjective and objective. The determination and attribution of disciplinary responsibility within the CPC have been elevated to a new level, which helps to better achieve the purpose of Party disciplinary sanctions of combining punishment with education, and is of great significance for promoting the standardization, legalization, and regularization of disciplinary inspection work.

在法学关于如何进行责任认定与归结的学说中，责任主义原则影响甚巨。责任主义原则主张，在实施制裁时必须考量“责任能力”“责任条件”和“责任相当”，责任能力是指行为人的辨识和控制能力，责任条件是指行为人的主观过错，责任相当是指行为人所受处罚与其过错的相当性。现行《党纪处分条例》事实上将责任能力作为责任基础，对于有损害后果的违纪将主观过错作为责任内容，将责任相当作为比例要求，因此，可以说，继刑事制裁与行政处罚之后，党纪处分也基本接受了责任主义作为归责原则。党纪处分对责任主义原则的贯彻，是科学运用主客观相统一方法论原则的成果，党纪责任的认定与归结提升到了新的水平，有助于更好地实现惩戒与教育相结合的党纪处分目的，对推进纪律检查工作的规范化法治化正规化有着重要意义。

III. Improvement of the Mechanism for Determining and Attributing Disciplinary Responsibility within the CPC

三、党纪责任认定与归结机制的完善

The current version of the Regulations on Disciplinary Sanctions of the Communist Party of China has set forth relevant provisions on disciplinary responsibility within the CPC. The “two-tier system” theory of the constitution of disciplinary violations [7]7 The “two-tier system” (两阶层体系) is a theoretical framework for analyzing the constitution of a disciplinary violation, distinguishing between the elements that establish the violation (e.g., act, consequence, causation) and the elements that negate responsibility (e.g., force majeure, lack of fault). has established a basic model for determining and attributing disciplinary responsibility within the CPC, but many aspects still need clarification. Therefore, it is necessary to combine the basic principles of the issue of responsibility with the special nature of Party discipline, promote the concretization and operationalization of the elements for determining and attributing disciplinary responsibility within the CPC, and enhance the standardization of disciplinary sanction work through a scientific mechanism of imputation.

现行《党纪处分条例》设定了党纪责任相关条款，“两阶层体系”违纪构成理论搭建了党纪责任认定与归结的基本模式，但仍有诸多方面有待明确。因此，应结合责任问题的基本原理和党的纪律的特殊性质，推动党纪责任认定与归结要素的具体化和可操作化，以科学的归责机制提升党纪处分工作的规范化水平。

(1) Adopting Presumption as the Method for Determining Fault

（一）以推定主义作为过错认定方式

As discussed above, according to the current version of the Regulations on Disciplinary Sanctions of the Communist Party of China, subjective fault is a prerequisite for pursuing disciplinary responsibility within the CPC. However, the Regulations on Disciplinary Sanctions of the Communist Party of China do not specify the method for determining subjective fault. The method for determining subjective fault is essentially a matter of allocating the burden of proof, i.e., whether the burden of proving fault lies with the accountability agency or with the subject being held accountable who is suspected of violating discipline. In determining subjective fault for disciplinary responsibility within the CPC, the presumption approach can be adopted. That is, if a Party member’s conduct causes losses or consequences, fault can be presumed. If the Party member suspected of violating discipline can prove that they indeed had no fault, then disciplinary responsibility within the CPC shall not be pursued.

前文已述，按照现行《党纪处分条例》，主观过错是追究党纪责任的前提。但是，《党纪处分条例》并未明确主观过错的认定方式。主观过错的认定方式实质上是证明义务的分配问题，即究竟是由追责机关承担过错的证明义务，还是由涉嫌违纪的被追责对象承担过错的证明义务。在党纪责任主观过错的认定上，可以选择推定主义，即党员行为造成了损失或者后果，可以推定其具有过错，如果涉嫌违纪的党员能够证明其确实不存在过错，则不追究其党纪责任。

On the one hand, the use of presumption as the method for determining fault in Party disciplinary responsibility has its legitimate basis. The essence of presumption is to allocate the burden of proving fault to the Party member suspected of violating discipline. From the perspective of the principle of responsibility, the ability to provide a rational defense for one’s own actions is itself a basic rational requirement for members of a moral community. To say that a person is responsible for something means, at its core, that this person has committed a certain act or caused certain consequences, for which he or she must provide a justification. Intra-Party regulations and discipline are themselves obligation-based. When a Party organization discovers that a member’s actions have caused loss or consequences, the member is naturally obligated to provide corresponding explanations and clarifications to the Party organization. Therefore, allocating the burden of proving fault to the Party member suspected of violating discipline conforms to the basic principles of intra-Party regulations and discipline. At the same time, if a Party member suspected of violating discipline can provide sufficient reasons to prove the legitimacy of his or her actions, this legitimate defense can block the pursuit of Party disciplinary responsibility. This not only does not violate the principle of accountability, but, through the reasoning in disciplinary enforcement and the weighing of justifications, it demonstrates that the enforcement of Party discipline is not only a “rule of rules” relying on authoritative regulations but also a “rule of reasons” supported by substantive value.

一方面，党纪责任以推定主义作为过错认定方式有其正当性依据。推定主义的实质是将过错的证明义务分配给涉嫌违纪的党员。从责任原理来看，能够为自己的行为进行理性辩护，本身就是对道德共同体成员的基本理性要求，称一个人要为某事负责，核心意思就是这个人做出了某个行为或造成了某些后果，使得他需要为此给出辩护。党规党纪本身就是以义务为本位的，党组织发现党员行为造成损失或者后果，党员理所当然有义务向党组织做出相应的说明和解释，因此，将过错的证明义务分配给涉嫌违纪的党员符合党规党纪的基本原则。同时，如果一个涉嫌违纪的党员能够提供充分的理由证明自己行为的正当性，则该正当性辩护得以阻却党纪责任的追究，这不但不违反责任主义原则，反而经由执纪说理与理由权衡，表明党的纪律的执行不仅是依赖权威性规则的“规则之治”，而且是获得了实质性价值支撑的“理由之治”。

On the other hand, the use of presumption as the method for determining fault in Party disciplinary responsibility also has its practical reasons. Disciplinary sanction work is characterized by a wide scope, heavy tasks, complex rules, and volatile situations. In particular, violations involving official integrity overwhelmingly occur in highly concealed forms, making them inherently difficult to investigate and punish. If the burden of proving subjective fault were allocated to the accountability organs, requiring discipline inspection and supervision agencies not only to investigate and confirm the disciplinary violation of the Party member but also to prove and define the subjective fault of the actor, this would indeed significantly increase the costs in time and energy, thereby affecting the efficiency of supervision and discipline enforcement. The practical rationality of using fault presumption as the method for determining subjective fault also lies in the fact that the Party member involved, as the party concerned, usually has the ability and conditions to provide evidence or materials demonstrating that he or she has fulfilled the duty of care in accordance with regulations, discipline, and law. If the member has indeed fulfilled the due obligations, it is generally easier to provide evidence. In this way, adopting fault presumption can both encourage Party members to better fulfill their duty of care and help improve the efficiency of discipline inspection and supervision agencies in their supervision and case-handling work.

另一方面，党纪责任以推定主义作为过错认定方式也有其现实性理由。纪律处分工作具有范围广、任务重、规则复杂、事态多变等特点，特别是涉及职务廉洁的违纪行为，绝大多数都以极其隐蔽的形式发生，查处起来本来就难度较大，如果将主观过错的证明义务分配给追责机关，要求纪检监察机关不但要调查确认党员的违纪行为，还要负责证明界定行为人的主观过错，确实会大幅提高时间精力成本，影响监督执纪效率。以过错推定为主观过错认定方式之所以具有现实合理性，还因为涉案党员作为当事人，通常有能力有条件提供其依规依纪依法履行了注意义务的证据或素材，如果确实尽到了应尽的义务，一般来说也较易举证。这样，采用过错推定，既可以促使党员更好地履行注意义务，又有利于提高纪检监察机关的监督执纪办案效率。

(II) Clarifying the Standards and Specific Types of the Duty of Care

（二）明确注意义务的标准与具体类型

From the perspective of types of subjective fault, intentional violations, because they involve the actor’s active implementation of a certain type of behavior or expression of intent to pursue harmful consequences, are relatively easier to judge in practice through the method and result of the behavior. Negligence, on the other hand, usually refers to a situation where the actor should have paid attention to the consequences of his or her actions but did not, or should have foreseen them but did not. Thus, the question of what exactly constitutes a situation where the actor “should have paid attention” or “should have foreseen,” i.e., the issue of the “duty of care,” becomes the focal point of controversy in determining whether negligent violation of discipline has occurred. This is because, without a prior setting of the duty of care, it is impossible to judge whether a particular action of the actor has fulfilled the duty of care or whether it constitutes negligent violation of discipline. The “Regulations on Disciplinary Sanctions of the Communist Party of China” [8]8 See Zhu Linfang, “The Normative Structure of the Principle of Proportionality in Responsibility in Intra-Party Regulations,” *Journal of Political Science and Law*, 2023, No. 5. accept subjective fault as a requirement for pursuing responsibility for actions by Party members that cause loss or consequences, but they rarely have clear provisions on the duty of care of the actor in various types of disciplinary violations.

从主观过错类型来看，故意违纪由于有行为人积极实施某类行为或追求危害结果发生的意图表达，因此，在实践中相对较为容易通过行为方式与行为结果进行判断。而过失，通常是指行为人对其行为的后果应当注意而没有注意，应当预见而没有预见，那么，究竟何种情形是行为人“应当注意”“应当预见”的，也即“注意义务”问题，就成为认定是否构成过失违纪的争议焦点。因为，如果没有先在的注意义务设定，就无从判断行为人的某一行为是否尽到了注意义务，是否构成过失违纪。《党纪处分条例》对于党员造成损失或者后果的行为，接受了主观过错作为追责要件，但对于各类违纪中行为人的注意义务，则很少有明确规定。

First, the standards for the duty of care should be scientifically set based on the characteristics of Party discipline. Party discipline differs from state law. The attribution of legal responsibility often uses the model of the “ordinary person” in society as a standard, whereas Party discipline itself imposes stricter requirements on Party members that are higher than those for the “ordinary person” in society. Therefore, the appropriate scope and degree of the duty of care should be set according to the role of the Party member in different types of disciplinary violation scenarios. The standard for setting the duty of care should not be too high, to avoid making it impossible for the member to comply, but it should also not be too low, as this would contradict the requirement of Party discipline for the advanced nature of Party members.

首先，应根据党的纪律的特点科学设定注意义务的标准。党的纪律不同于国家法律，法律责任的归结常以社会“一般人”模型为标准，而党的纪律本身就是对党员提出的高于社会“一般人”的更严格的要求。因此，应根据党员在不同类型违纪情境中的角色设定注意义务的适当范围和程度，注意义务的设置标准，不宜过高，避免强人所难，但也不宜过低，否则将有悖于党的纪律对党员的先进性要求。

Second, the concretization and typification of the duty of care should be promoted. Given that the “Regulations on Disciplinary Sanctions of the Communist Party of China” are not suitable for frequent revision or overly detailed provisions, in practice, the system of “guiding cases for disciplinary and law enforcement” [9]9 See the Supreme People’s Court’s “Reply on How to Understand and Apply the ‘etc.’ in Article 53, Paragraph 1, Item 6 of the *Administrative Litigation Law*” (2018). can be developed to promote the concretization and typification of the duty of care. This involves summarizing the duty of care content of typical significance across 133 types of disciplinary violation patterns [10]10 The 18th National Congress of the CPC was held in 2012. The three major revisions to the *Regulations on Disciplinary Sanctions of the Communist Party of China* refer to revisions in 2015, 2018, and 2023. covering the six major categories of violations—political discipline, organizational discipline, integrity discipline, mass discipline, work discipline, and lifestyle discipline—thereby providing a normative guide for identifying whether a Party member has violated the corresponding duty of care in the practice of supervision and discipline enforcement.

其次，应推进注意义务的具体化和类型化。在《党纪处分条例》不宜进行频繁修订和过细规定的情况下，实践中可以通过发展“执纪执法指导性案例”制度推进注意义务的具体化和类型化，总结违反政治纪律、组织纪律、廉洁纪律、群众纪律、工作纪律、生活纪律六大违纪种类共133种违纪行为模式具有典型意义的注意义务内容，为在监督执纪实践中甄别党员是否违反了相应的注意义务提供规范性的指南。

(III) Systematically Applying the Principle of Proportionality of Responsibility to Determine Responsibility and Impose Sanctions

（三）体系运用责任相当原则定责量纪

As discussed earlier, both the “Regulations on Disciplinary Sanctions of the Communist Party of China” and the “Regulations on Accountability of the Communist Party of China” [11] contain requirements for proportionality of responsibility. However, the norm of proportionality of responsibility is a principled clause. There are no specific standards or methods for judging what constitutes proportionality of responsibility. This may lead to situations where disciplinary enforcers do not know how to apply the principle of proportionality of responsibility and thus impose sanctions mechanically, or it may lead to disciplinary enforcers abusing their discretionary power and enforcing discipline arbitrarily. Problems have already emerged in the practice of supervision and discipline enforcement. For example, a deputy bureau chief in Quanjiao County, Chuzhou City, Anhui Province, was given a warning within the Party for missing a phone call while taking a shower after work [12]; a staff member of the Chenzhou High-tech Industrial Development Zone in Hunan Province was ordered by the park’s discipline inspection commission to handle the matter for drinking milk during work hours [13]; teachers at Tunliu District Middle School in Changzhi City, Shanxi Province, were criticized in a circular and ordered to make self-criticisms by the district discipline inspection commission for dining together at their own expense during a holiday [14]; and a cadre in Mabian Yi Autonomous County, Leshan City, Sichuan Province, was given a reprimand and ordered to make a check for posting on WeChat Moments during work hours [15]. To a large extent, these cases reflect a failure to accurately grasp the principle of proportionality of responsibility in determining responsibility and imposing sanctions.

前文已述，《党纪处分条例》与《问责条例》中都有关于责任相当的要求。但是，责任相当规范属于原则性条款，如何判断责任相当，并没有具体的标准与方法，这既可能使执纪者不知道如何运用责任相当原则而教条量纪，也可能导致执纪者滥用自由裁量权而随意执纪。监督执纪实践中已经暴露出一些问题，如安徽省滁州市全椒县一副局长在下班时间因洗澡漏接电话被给予党内警告处分，湖南省郴州市技术产业开发区一工作人员上班期间喝牛奶被园区纪工委责令处理，山西省长治市屯留区中学教师在放假期间自费聚餐被纪委通报批评和责令检讨，四川省乐山市马边彝族自治县一位干部上班时间发微信朋友圈被给予诫勉和责令检查处理等，这些在很大程度上都是未能准确把握责任相当原则定责量纪的体现。

First, in applying the principle of proportionality of responsibility, it is necessary to accurately judge the type and magnitude of the “fault” and to grasp the requirement of “proportionality” using the principle of proportionality. To achieve proportionality of responsibility, multiple factors need to be comprehensively considered, such as: whether the facts constituting the disciplinary violation require the pursuit of Party disciplinary responsibility; whether the disciplinary violation falls within the scope of Party disciplinary sanctions; whether the disciplinary violation is minor enough not to warrant Party disciplinary sanctions; and the degree of harm caused by the disciplinary violation to the interests of the Party, the state, and the people—whether it is serious harm or harm of a lesser degree. Proportionality of responsibility is a rule of proportionality. The facts, nature, circumstances, and degree of harm of the disciplinary violation only describe the content of the “fault”; they do not yet clarify whether it is “proportional.” It is necessary to incorporate analytical perspectives such as whether the purpose of the sanction is legitimate, whether the sanction helps achieve its purpose, and whether the sanction exceeds the necessary limits, to assist in judging whether the “fault” and the responsibility are

首先，适用责任相当原则，需准确判断“过”的类型和大小，并以合比例性原则把握“相当”的要求。要做到责任相当，需要综合考虑多方面因素，如构成违纪行为的事实是否需要追究党纪责任；违纪行为是否属于党纪处分的范畴；违纪行为是否属于情节轻微不够党纪处分的行为；违纪行为对于党、国家和人民利益的危害程度，是严重危害还是危害程度不大等。责任相当是一种比例性的法则，违纪行为的事实、性质、情节以及危害程度只描述了“过”的内涵，还不能明确“相当”与否，需要纳入处分目的是否具有正当性、处分是否有助于其目的的实现、处分是否超过了必要的限度等分析视角，来辅助判断“过”与责任是否相当。习近平总书记指出：“要把干部在推进改革中因缺乏经验、先行先试出现的失误和错误，同明知故犯的违纪违法行为区分开来；把上级尚无明确限制的探索性试验中的失误和错误，同上级明令禁止后依然我行我素的违纪违法行为区分开来；把为推动发展的无意过失，同为谋取私利的违纪违法行为区分开来。”“三个区分开来”正是强调要科学细分“过”的有无与类型，在定责量纪时予以区别对待，从而实现过罚相当。在2022年执纪执法指导性案例第4号“对林某予以容错免责案”中，纪检监察机关就区分了“工作失误”与“蓄意违规”，认定林某所犯错误不是明知故犯，属于“为推动发展的无意过失”，因而予以容错免责，就是很好地运用责任相当原则的体现。

Second, the principle of proportionality in responsibility should be applied in a systemically coherent manner, functioning to fill gaps or correct rules in the determination of responsibility and the imposition of discipline. The principle of proportionality in responsibility is a normative principle. “When intra-Party regulations encounter ambiguity, gaps, or impropriety, intra-Party regulatory principles can serve as optimization commands, providing directional guidance and confining the understanding and application of intra-Party regulatory rules within the scope of purposiveness.” [8]8 See Zhu Linfang, “The Normative Structure of the Principle of Proportionality in Responsibility in Intra-Party Regulations,” *Journal of Political Science and Law*, 2023, No. 5. In practice, a case has arisen: Party member Li, driving under the influence (blood alcohol concentration 215mg/100ml), was sentenced by the People’s Court to two months’ criminal detention, suspended for three months, and fined 2,000 yuan for the crime of dangerous driving. Party member Liu, driving under the influence (blood alcohol concentration 220mg/100ml), rear-ended Wang’s vehicle, causing Wang’s death and damage to both vehicles, and was sentenced by the People’s Court to 11 months’ fixed-term imprisonment, suspended for one year and six months, for the crime of causing a traffic accident. Li’s conduct and consequences were relatively minor, but because dangerous driving is an intentional crime, according to Article 34, Paragraph 1 of the *Regulations on Disciplinary Sanctions of the Communist Party of China*, “those who are lawfully sentenced to a principal punishment stipulated in the Criminal Law (including a suspended sentence) for an intentional crime” “shall be given the sanction of expulsion from the Party.” Liu’s conduct and consequences were more serious, but because causing a traffic accident is a negligent crime, it does not meet the conditions of Article 34, Paragraph 3 of the *Regulations on Disciplinary Sanctions*, which states “for a negligent crime, lawfully sentenced to fixed-term imprisonment of three years or more (excluding three years)”; thus it falls under a disciplinary violation for which “expulsion from the Party may not be imposed.” The disciplinary enforcement departments, applying the rule provisions of Article 34 of the *Regulations on Disciplinary Sanctions* mechanically, imposed a heavy sanction on Li and a light one on Liu, leading to a typical case of individual injustice: simple drunk driving resulted in expulsion from the Party, while drunk driving causing a death did not result in expulsion, causing the parties involved to refuse to accept the decision and file an appeal. It is not uncommon for written regulations to contain normative gaps or conflicts. In situations similar to this case, the corrective function of principles should be brought into play, excluding the case from the direct scope of application of the rule, applying the principle of proportionality in responsibility, and making a judgment by comprehensively weighing the facts, nature, circumstances, and degree of harm of the case, thereby avoiding light errors being heavily punished and serious errors being lightly punished.

其次，应以体系融贯的方式运用责任相当原则，在定责量纪中发挥漏洞填补或规则修正的功能。责任相当属于原则规范，“当党内法规规则遭遇模糊、漏洞或不当时，党内法规原则能够作为最佳化命令提供方向性指引，将对党内法规规则的理解和适用限定在合目的性的范围之内”。实务中出现过这样的案例：党员李某醉酒驾驶（血液乙醇浓度为215mg/100ml），被人民法院以危险驾驶罪判处拘役2个月，缓刑3个月，并处罚金2000元。党员刘某醉酒驾驶（血液乙醇浓度为220mg/100ml），并与王某车辆追尾，造成王某死亡、两车受损，被人民法院以交通肇事罪判处有期徒刑11个月，缓刑1年6个月。李某行为与后果较轻，但因危险驾驶罪为故意犯罪，根据《党纪处分条例》第34条第1款“因故意犯罪被依法判处刑法规定的主刑（含宣告缓刑）”，“应当给予开除党籍处分”。刘某行为与后果更重，但因交通肇事罪为过失犯罪，不符合《党纪处分条例》第34条第3款“因过失犯罪，被依法判处三年以上（不含三年）有期徒刑”，因而属于“可以不开除党籍”的违纪行为。执纪执法部门教条适用规则条款即《党纪处分条例》第34条，对李某重处，对刘某轻处，导致了典型的个案不正义，即单纯醉驾被开除党籍，醉驾且撞死人却不用开除党籍，以致当事人不服，提出申诉。成文法规存在规范漏洞或规范冲突并不鲜见，在类似本案的情形中，应发挥原则的规范修正功能，将案件排除出规则的直接适用范围，适用责任相当原则，全面衡量案件的事实、性质、情节以及危害程度作出裁判，避免轻错重处、重错轻处。

(4) Cautiously Expand “Beyond the Listed” Grounds for Responsibility Exemption

（四）谨慎拓展责任阻却“等外”事由

The current *Regulations on Disciplinary Sanctions of the Communist Party of China* stipulates that “where it is caused by force majeure or other reasons, Party disciplinary responsibility shall not be pursued,” clarifying that force majeure is a ground for exemption from Party disciplinary responsibility. However, the unresolved issue is whether the “etc.” here means “within the listed” or “beyond the listed.” In modern Chinese, when the word “etc.” is used as an auxiliary, it can either “indicate that the enumeration is not exhaustive,” i.e., “beyond the listed,” or “indicate that the enumeration ends here,” i.e., “within the listed.” If interpreted as “within the listed,” then the only ground for exemption from Party disciplinary responsibility is force majeure, with no others. If interpreted as “beyond the listed,” it means there are other circumstances that can serve as grounds for exemption from Party disciplinary responsibility. This article argues that the “etc.” here should be interpreted as “beyond the listed.”

现行《党纪处分条例》规定“由于不可抗力等原因所引起的，不追究党纪责任”，明确了不可抗力是党纪责任阻却事由。但是，未尽之处在于，此处的“等”是“等内”还是“等外”。现代汉语中的“等”作助词使用时，既可以“表示列举未尽”，即“等外”，也可以“表示列举后煞尾”，即“等内”。如果作“等内”解，则党纪责任阻却事由仅有不可抗力一例，别无其他；如果作“等外”解，则意味着另有其他情形可以成为党纪责任的阻却事由。本文主张，此处的“等”应作“等外”解为宜。

First, from the perspective of linguistic expression rules, when the word “etc.” is interpreted as “indicating that the enumeration ends here,” it is generally followed by a quantifier as a marker, such as “Zhang, Li, Wang, and other three persons.” When interpreted as “indicating that the enumeration is not exhaustive,” there is no quantifier marker. In legal interpretation, judicial authorities have explicitly stated: “When legal norms list typical applicable situations and then use expressions such as ‘etc.’ or ‘other,’ this constitutes an incomplete enumeration of illustrative provisions.” [9]9 See the Supreme People’s Court’s “Reply on How to Understand and Apply the ‘etc.’ in Article 53, Paragraph 1, Item 6 of the *Administrative Litigation Law*” (2018).

首先，从语言表述规则的角度来看，“等”字作“列举后煞尾”解释时一般在“等”之后有数量词作为标志，如“张某、李某、王某等3人”，作“列举未尽”解释时则没有数量词标志。在法律的解释中，司法机关就曾明确表示：“法律规范在列举其适用的典型事项后，又以‘等’、‘其他’等词语进行表述的，属于不完全列举的例示性规定。”

Second, from the perspective of the system and contextual interpretation of the regulations, the enumeration of force majeure in this provision indeed does not exhaust all possible grounds for exemption from Party disciplinary responsibility. For example, as discussed earlier, if a Party member with a mental illness violates Party discipline and cannot recognize or control their own behavior, they are not subject to Party disciplinary investigation; this uses lack of capacity for responsibility as a ground for exemption. Additionally, in practice, there are cases where conduct such as “executing orders from a superior” that lacks the possibility of expectation is treated as a ground for exemption from responsibility. For instance, in a case of executing an illegal order from a superior, staff of the discipline inspection and supervision organs explicitly pointed out in their case analysis: if the subordinate knew the superior’s order was wrong but raised no objection, the subordinate’s responsibility cannot be exempted; if the actor raised the issue that the order or decision was illegal but the superior insisted on execution, it should be determined that they have practically fulfilled their duties in law and bear no disciplinary responsibility. This is because, based on the unequal power relationship between superior and subordinate, it is generally difficult to impose an excessively high expectation of possibility on the subordinate to resist the superior’s illegal order or decision.

其次，从法规的体系与语境解释角度来看，该条款中的不可抗力列举也的确并未穷尽党纪责任阻却事由的所有可能。譬如，前文所谈到的患有精神疾病的党员违纪，不能辨认或者不能控制自己行为的，不受党纪追究，便是以缺乏责任能力作为阻却事由。此外，实践中，还存在将“执行上级命令”等缺乏期待可能性的行为作为责任阻却事由的做法。如在一个执行上级违法命令的案例中，纪检监察机关工作人员在案例分析中明确指出：如果明知上级命令错误，不提出异议，则不能免除下级责任；如果行为人向上级提出命令或者决定违法但上级坚持执行，应当认定其在法律上实际完成了职责内容，不承担纪律责任。因为基于上下级之间权力上的不对等关系，一般难以对下级提出对抗上级违法命令或者决定的过高的期待可能性。

In summary, the “etc.” in “force majeure or other reasons” should be interpreted as “beyond the listed.” In practice, there indeed exist practices of treating situations such as “lack of capacity for responsibility” and “lack of possibility of expectation” as grounds for exemption from Party disciplinary responsibility. The “beyond the listed” interpretation means that, in addition to the enumerated content, there are some situations that, although not explicitly stated in the regulations, can continue to be explored. For example, in public interest litigation, the exploration of “beyond the listed” types not explicitly enumerated in the law constitutes an important part of public interest litigation practice. However, the expansion and exploration of “beyond the listed” grounds should be strictly constrained by reasoning and argumentation requirements; that is, unless there are stronger reasons, situations not explicitly enumerated in the regulations should not be directly used as grounds for exemption from Party disciplinary responsibility.

总之，“不可抗力等原因”中的“等”应作“等外”解释，实践中也的确存在将“缺乏责任能力”和“缺乏期待可能性”等情形作为党纪责任阻却事由的做法。“等外”解释意味着除了列举的内容之外，还存在一些法规虽未明确但可以继续探索的情形，譬如在公益诉讼中，对于法律未明确列举的“等外”类型的探索构成了公益诉讼实践的重要组成部分。不过，对“等外”事由的扩展探索应当受到严格的说理和论证约束，即除非有更强的理由，不得径行将法规未明确列举的情形作为党纪责任阻却事由。

(5) Reasonably Interpret the Normative Connotation of Exemption Clauses

（五）合理诠释免责条款的规范内涵

The current *Regulations on Disciplinary Sanctions of the Communist Party of China* does not, like the *Administrative Penalty Law*, stipulate that if the party concerned has no subjective fault, “no administrative penalty shall be imposed.” Instead, it directly stipulates that if a Party member’s conduct is not intentional or negligent, “Party disciplinary responsibility shall not be pursued.” The difference lies in the fact that if the provision only states “no disciplinary sanction shall be imposed,” it means that if a Party member has no intent or negligence, they simply cannot be given a “disciplinary sanction,” but it does not mean that they cannot be given “non-sanction-type handling measures” other than disciplinary sanctions. However, if it directly stipulates “Party disciplinary responsibility shall not be pursued,” it creates a difficulty: if a Party member’s conduct causes loss or consequences but is not intentional or negligent, whether they can be given “non-sanction-type handling measures” becomes a problem.

现行《党纪处分条例》没有像《行政处罚法》那样规定当事人没有主观过错的，“不予行政处罚”，而是直接规定党员行为不是出于故意或者过失的，“不追究党纪责任”。区别在于，如果规定的只是“不予纪律处分”，意味着如果党员没有故意或者过失，只是不能给予其“纪律处分”，但并不意味着不能给予其纪律处分之外的“非处分类处理措施”。而如果直接规定“不追究党纪责任”，则会导致如果党员行为造成损失或后果，但不是出于故意或者过失，是否能够给予其“非处分类处理措施”成为难题。

To adapt to the diversity of forms of disciplinary violations, Party disciplinary sanctions have formed a dualistic approach to responsibility realization: “disciplinary sanctions + non-sanction-type handling measures.” In addition to the five types of disciplinary sanctions in the strict sense—warning, serious warning, removal from Party posts, probation within the Party, and expulsion from the Party—there are also two major categories of “non-sanction-type handling measures”: “warning and education type” and “organizational handling type.” The “warning and education type” mainly includes methods such as criticism education, conversation reminders or conversation inquiries, ordering cessation of disciplinary violations, ordering apologies, ordering self-examination, circulating criticism, and admonishment. The “organizational handling type” mainly includes methods such as suspension for investigation, adjustment of position, ordering resignation, removal from office, and demotion.

为了适应违纪行为的形态多样性，党的纪律处分形成了“纪律处分+非处分类处理措施”的二元主义责任实现方式。除了警告、严重警告、撤销党内职务、留党察看和开除党籍五种严格意义上的纪律处分，还包括“警示教育类”和“组织处理类”两大“非处分类处理措施”。“警示教育类”主要有批评教育、谈话提醒或谈话函询、责令停止违纪行为、责令赔礼道歉、责令检查、通报批评、诫勉等方式；“组织处理类”主要有停职检查、调整职务、责令辞职、免职、降职等。

Based on the purpose of Party discipline sanction work and the nature of non-sanction-type handling measures, the phrase “not to investigate Party discipline responsibility” should be given a purposive restrictive interpretation, so that it includes only disciplinary sanctions and excludes non-sanction-type handling measures. On the one hand, from the perspective of the gist of the provision, stipulating that Party discipline responsibility is not investigated when a Party member’s conduct is not intentional or negligent is based on the absence of subjective fault and culpability, and thus punishment or sanction may be waived. Although the expression is “not to investigate Party discipline responsibility,” the actual focus is on exemption from punishment or sanction. On the other hand, from the perspective of the nature of non-sanction-type handling measures, their greatest difference from disciplinary sanctions lies in the fact that they are not fundamentally characterized by sanction. Sanction is intended to punish the perpetrator of an already-committed violation by reducing the perpetrator’s rights or interests or imposing on the perpetrator additional burdens beyond their original obligations. Non-sanction-type handling measures, however, are not based on the blameworthiness of an already-committed act; rather, they serve non-sanction purposes such as eliminating possible disciplinary risks, preventing the expansion of harmful consequences, facilitating supervision and discipline enforcement work, or preventing the recurrence of harmful conduct. Although they may also bring about certain disadvantages, they are essentially not punishments imposed for the perpetrator’s already-committed act and do not possess typical sanctioning character. Therefore, even if a Party member’s conduct causes loss or consequences, and even if it is not intentional or negligent, and Party discipline responsibility is not investigated, Party organizations should still be permitted to adopt non-sanction-type handling measures such as warning education and organizational handling, in order to eliminate the risk of harm or prevent its recurrence.

基于党纪处分工作的目的和非处分类处理措施的性质，应对“不追究党纪责任”作合目的性的限缩解释，使其仅包括纪律处分，而不包括非处分类处理措施。一方面，从条文要旨来看，规定党员行为不是出于故意或者过失的不追究党纪责任，是基于其不存在主观过错和可谴责性，故而可以不予惩罚或制裁，虽然表述为“不追究党纪责任”，但落脚点实际上在于惩罚和制裁的豁免。另一方面，从非处分类处理措施的性质来看，其与纪律处分的最大区别就体现在不以制裁性为根本特征。制裁是为了对已实施违规行为的行为人进行惩罚而减损行为人的权益或向行为人课予其本来义务之外的额外负担。而非处分类处理措施并不是建立在已实施之行为可非难性的基础之上，而是为了消除可能存在的违纪风险，避免损害后果扩大，便利监督执纪工作开展或者防止损害行为再次发生等非制裁性目的，虽然也会带来一些不利益，但本质上并不是针对当事人已实施之行为科处的惩罚，并不具有典型的制裁性。因此，党员行为造成损失或者后果，即便不是出于故意或者过失，不追究党纪责任，也应允许党组织采取警示教育和组织处理等非处分类处理措施，以消除损害风险或预防损害再次发生。

Conclusion

结语

After more than one hundred years of practical exploration, especially the three major revisions to the *Regulations on Disciplinary Sanctions of the Communist Party of China* since the 18th National Congress of the CPC, [10]10 The 18th National Congress of the CPC was held in 2012. The three major revisions to the *Regulations on Disciplinary Sanctions of the Communist Party of China* refer to revisions in 2015, 2018, and 2023. the regulations on Party discipline sanctions have gradually developed three basic categories: violation of discipline, disciplinary sanction, and Party discipline responsibility. The development of the concept of Party discipline responsibility has made the determination and attribution of Party discipline responsibility a key link in Party discipline sanction work. In the practice of Party discipline sanctions, the theory of the constitution of a violation has also evolved from the old “four-element theory” comprising the subject of the violation, the object of the violation, the subjective aspect of the violation, and the objective aspect of the violation, to a new “two-tier system” composed of “objective violation of rules + subjective culpability,” laying the foundation for determining and attributing Party discipline responsibility by more scientific methods. The current *Regulations on Disciplinary Sanctions of the Communist Party of China* has made important supplements and improvements to the elements of the determination and attribution of Party discipline responsibility, initially forming a set of elements for the determination and attribution of Party discipline responsibility that takes responsibility capacity as the basis for accountability, subjective fault as the content of responsibility, force majeure as a ground for obstruction, and proportionality of responsibility as the requirement. The *Regulations on Disciplinary Sanctions of the Communist Party of China* provides relevant clauses on Party discipline responsibility and sets out the basic content of the determination and attribution of Party discipline responsibility. However, issues such as the method of determining subjective fault, the standard for setting the duty of care, the method of applying proportionality of responsibility, “other” grounds for obstruction of responsibility, and the normative connotation of exemption clauses still lack definite rules. Future theoretical and practical work on disciplinary sanctions should focus on exploring how to construct a more scientific mechanism for the determination and attribution of Party discipline responsibility through means such as clarifying doubtful points in provisions, interpretive filling of meaning, guidance from discipline enforcement and law enforcement cases, and refinement of applicable types, so as to provide strong disciplinary guarantees for the development of the Party’s cause.

经过一百多年的实践探索，特别是党的十八大以来对《党纪处分条例》的三次重大修订，党纪处分法规陆续发展出了违纪、纪律处分和党纪责任三个基本范畴，党纪责任概念的发展，使得党纪责任的认定与归结成为党纪处分工作的关键环节。在党纪处分实践中，违纪构成理论也从旧的包括违纪主体、违纪客体、违纪主观方面、违纪客观方面的“四要件说”，发展为由“客观违规性＋主观有责性”组成的新的“两阶层体系”，为以更加科学的方法认定与归结党纪责任奠定了基础。现行《党纪处分条例》对党纪责任认定与归结的要素进行了重要的补充与完善，已初步形成以责任能力为追责基础、以主观过错为责任内容、以不可抗力为阻却事由、以责任相当为比例要求的党纪责任认定与归结要件。《党纪处分条例》规定了党纪责任相关条款，设定了党纪责任认定与归结的基本内容，但譬如主观过错的认定方式、注意义务的设定标准、责任相当的适用方法、责任阻却的“等外”事由、免责条款的规范内涵等问题，目前仍无确定的规则。未来的纪律处分理论与实践工作应注重通过条文疑义释明、意义填充解释、执纪执法案例指导和适用类型方法提炼等途径，进一步探索如何构建更加科学的党纪责任认定与归结机制，为党的事业发展提供坚强的纪律保障。

(Author’s bio: Zhu Linfang, Associate Professor, School of Administrative Law, Southwest University of Political Science and Law)

（作者简介：朱林方，西南政法大学行政法学院副教授）

Online editor: Tongxin

网络编辑：同心