给付行政中的法律保留原则理论与适用研究

On the Theory and Application of the Law Retaining Principle in Administrative Supply

法律保留原则最早产生于政府实施"警察权"的背景之下,意义在于约束侵害行政和保障公民基本利益,要求行政机关的行为必须有明文法规可依。而随着现代社会政府的职能和角色越来越从管理向服务发展,给付行政的兴起要求行政机关根据需要作出授益性的行政行为,并随之带来了法律缺位时行政自由裁权和公民权利的处理难题。因此,传统法律保留原则必须在给付行政的适用中,进行修正和重新释义。

The Law Retaining Principle was first introduced in the background of the dominance of ＂ police power＂ of the government, which aimed to restrain government administration and protect the rights of citizens and requires explicit regulation before government can take any action. However, as the role of government is turning to service rather than regulation, the rise of administrative supply asks government to act according to practical needs, which brings up the question of how to deal with administrative discretion and citizen rights in the absence of explicit law. Thus, conventional idea of the Law Retaining Principle must be rethought about and revised in the rise of Administrative Supply.