作为职权转移机制的行政授权

Administrative Authorization as A Mechanism of Power Transfer

近些年来,由行政机关通过授权实现职权转移的立法趋势逐渐增强,行政机关主导的授权实践也愈加蓬勃。但学界主流观点倾向于将“行政授权”理解为“法律、法规、规章授权”,要么直接否定行政机关授权,要么将后者视为前者的特殊情形,忽视了行政机关授权意志与授权行为的独立性,未能建构实体法意义上的行政授权概念,在具体操作上也难以为授权与委托的区分提供实质标准。基于我国当前行政实践发展和国家治理的现实需要,应当明确行政授权是一种由行政机关通过自主授权实现职权转移的独立法律机制。从行政职权配置方式的法律结构分析,行政授权既不同于职权设定,也不同于法律授权和行政委托。行政授权的成立需要有权行政机关根据明确的授权法律规范,作出具体的授权行为,授权行为的法律效果在于实现行政权的转移。行政授权的法律关系虽然主要是一种内部的行政法关系,但行政授权所带来的职权转移仍旧会形成一定的外部法效力。基于程序法治原则,行政授权应当遵循特定的公告程序。

In recent years,the legislative trend of power transfer by administrative agencies through authorization has gradually strengthened,and the practice of authorization led by administrative agencies has become more vigorous.However,the mainstream academic theories tend to understand“administrative authorization”as“authorization by laws,regulations and rules”,which either directly negates the authorization by administrative organs or regards the latter as a special case of the former.Unfortunately,the mainstream academic theories neglect the independence of the delegation will and the delegation act of the administrative organ,fails to construct the concept of administrative delegation in the sense of substantive law,and is difficult to provide substantive standard for the distinction between delegation and delegation in concrete operation.Based on the realistic needs of the development of current administrative practice and the construction of national governance system in our country,we should make clear that administrative authorization is an independent legal mechanism through which administrative organs realize the transfer of functions and powers through independent authorization.From the perspective of the legal structure of the way of allocation of administrative powers,administrative delegation is different from the setting of powers,legal authorization and administrative delegation.The establishment of administrative authorization requires the competent administrative organs to make specific authorization acts according to the clear legal norms of authorization,and the legal effect of authorization acts lies in the transfer of administrative power.Although the legal relationship of administrative authorization is mainly an internal administrative law relationship,the power transfer brought by administrative authorization will still form a certain external legal effect.Bound by the principle of procedural rule of law,administrative authorization should follow specific announcement procedures.