论行政奖励的立法规制

On the Legislation of Administrative Incentives

由于传统法学理论忽视奖励对社会的调整作用、立法机关对奖励机制存在偏见等原因,我国立法对行政奖励的规制很不完善,有必要对行政奖励进行规制以制约行政主体滥用权力,依据其他规范性文件和自由裁量权实施某些行政奖励。行政奖励客体应当包括政府认可的非义务行为、仅通过强制手段无法实现行政目标的义务性行为和对行为结果无法控制的义务性行为。在行政奖励立法时应当充分考虑行政奖励的功能,分析影响行政奖励方式的因素,如受激励群体的偏好,成本与效益的分析,是否违反法律、社会公德和其他更重要的利益等。

As traditional legislation theories neglect the adjustment function of incentives, and legislature has prejudices towards incentive mechanisms and so on, China＇ s legislation concerning administrative incentives is faulty. So, it is necessary to implement legal regulation on administrative incentives to restrict administrative abuse of power, and together with other regulative documents and discretion to bring administrative incentives under control. The object of administrative incentives should include non-governmental obligations that are approved by government, obligatory acts that cannot be carried out by coercive means and those whose outcome cannot be controlled. Hence, we should take full account of the function of the administrative incentives, analyze the factors that influence administrative incentives, such as preference of the affected groups, cost and benefit analysis, whether the legislation violates the law, the common courtesy or other more important interests, etc.