论行政惯例的司法审查

On Judicial Review of Administrative Customs

行政惯例是行政机关在处理行政事务中形成的惯常性做法,具有反复适用性,非成文表现形式,对行政机关具有直接拘束力特点。根据"举重明轻"原则,司法可以审查效力高于行政规范的行政规章,就更可以审查效力位阶等同于行政规范的行政惯例。只有在审查具体行政行为过程中,当事人双方对上位法规范没有异议时,才能附带审查行政惯例的合法性。审查行政惯例的标准是上位法优先标准、宪法基本人权标准以及基本权价值位序衡量标准。审查行政惯例要避免忽略宪法的基本人权原则,也要避免对行政惯例进行合法性和适当性的全面审查。

The administrative customs are habitual practices formed in dealing with the administrative affairs. They are unwritten law, applied again and again, and constrain the administrators. If the momentousness is permitted, it goes without saying the less. If the judicial review of adminstrative ordinances, which have higher force than the administrative rules does, are permitted, it goes without saying the judicial review of the administrative customs, which has the same force with the administrative rules. When the administrative act being reviewed, and the parties having no dispute on the upper regulations, the administrative customs could be reviewed ineidenally. The review standards are the prior laws, the constitutional principle of human rights and weighing the value of human rights. Moreover, we must avoid to comprehend ＂law ＂ as the statute law without constitutional principles and expand the jurisdiction to review the legality and rationality of the administrative customs.