论营业行政许可的法律属性与合理边界

On the Nature and Reasonable Boundary of the Business Administrative License

从民事主体营业自由权的应然性和正当性来分析,营业行政许可行为应视为行政机关基于无害性审查对营业申请者获得营业资格和营业能力的行政解禁行为。基于此,法律和制度关于营业行政许可事项的设定,就应主要去考虑营业是否关涉到公共安全、公共秩序、公共利益和环境生态,营业行政许可事项也应严格锁定在公共利益的无害性审查范围内,舍此,就无须设定营业行政许可。

To analyze from the oughtness and justifiability of the right of civil subject to free business, business administrative license should be regarded as a kind of administrative act that the administrative organs lift a ban from the business qualifications and capacity of the applicants based on the harmless examination. Thus, the establishment of matters of administrative license in law and system should mainly consider several factors, including public security, public order, public interests and the environment. The matters of business administrative license should be strictly limited in the scope of the harmless examination of public interests. Besides, there is no need to establish business administrative license.