行政授权的若干争议问题探析

A Study of Disputes on Administrative Delegation

行政权力社会化、公共服务民营化改革迫切需要加强行政授权的立法和研究。学界对行政授权的概念、性质、依据、法律后果在认识上存在严重分歧。我国应当在行政程序法中明确行政授权的行政行为属性,并明确规定行政授权的法律依据范围、具体程序和授权机关的授权担保责任;应当在行政复议法中明确授权机关在行政授权法律关系中的的复议机关地位;应当在国家赔偿法中明确授权机关对被授权机关行使所授职权行为的连带赔偿责任。

The reform of socializing administrative power and privatizing public services urgently need to emphasize legislation and research of administrative delegation. There have been conflicting opinions about the understanding of the concepts, the nature, the foundation and the legal consequences of administrative delegation. The administrative-act nature of administrative delegation should be explicated in the administrative process law, so should the scope of legal grounding, concrete procedures and the delegation guarantee liability of the delegating organ. The status of the delegating organ acting as the reconsidering organ in the administrative delegation relationship should be stipulated explicitly in the administrative reconsideration law. And it also needs to be explicated that the delegating organ should exercise a joint compensation liability for its possible delegated acts, which is implemented by the delegated organ in the state compensation law.