行政授权理论之反思与重构——走出理论与现实困境的一种认知尝试

Review and Reconstruction of the Theory on Administrative Authorization——An Academic Attempt to Get out of the Dilemmabetween the Theories and the Reality

行政授权是《行政诉讼法》颁布后我国行政法学界广泛使用的一个概念,但现有观点在理论上难以自圆其说,也无法指导实践,相反已经严重影响了立法、执法和司法。行政授权的本质是行政职权的再分配。行政机关授出自身职权的前提是法律规范的规定,但不能认为行政机关在有法律规范规定的情况下,就可以授出职权,行政授权能否成立还取决于授权法律规范必须合法。一个合法的授权法律规范必须具备三项基本条件,在此基础上才能正确定义行政授权和界定其内涵。

Administrative authorization is a concept widely used in the administrative and legal circle after the enactment of Administrative Procedure Law of the People＇s Republic of China. However, the present items cannot satisfy themselves in theory, nor can they render proper guidance for practice. On the contrary, they have caused negative impact on legislation, enforcement of laws and judicial administration. The paper holds that the essence of administrative authorization is the reallocation of admin- istrative powers. The precondition for administrative departments to authorize is to get the approval and license, yet it should not be taken for granted that such authorization can be delegated where there are provisions in laws and regulations. The effectiveness of administrative authorization is subject to the legitimacy of the authorizing laws, which shall meet three basic requirements. Only based on the requirements can administrative authorization be correctly defined and its connotation clarified.