行政抵抗权的法理学基础

Nomological Basis for Administrative Defying Right

行政机关做出的明显重大违法行为,如乱摊派、罚款不出示收据等,在行政法学中被称为无效行政行为,我国个别法律、法规对此规定了行政抵抗权。然而,由于对行政抵抗权法理学基础认识不充分,行政相对人心存疑虑,行政机关心怀抵触,影响了权利的实现。行政抵抗权的三个法理学基础是:人民主权理论、基本人权理论和权利救济理论。我国应借鉴法治发达国家经验,在正在起草的《中华人民共和国行政程序法》中规定行政抵抗权。

In administrative law, obviously serious unlawful actions by the administrative organizations such as requisition donations arbitrarily and fines without providing receipts are named invalid administrative actions, against which a few laws and regulations in China stipulate administrative defying right. However, due to inadequate cognition on the nomological basis for administrative defying right, doubts by the administrative adressats, and the contravening by the administrative organizations, the realization of this right has been affected. The nomological basis for administrative defying right is： the theories of people＇ s sovereignty, of basic hmnan rights and of right relief. China should take as reference the experiences of developed countries, to stipulate the administrative defying right in Administrative Procedure Act of the People＇ s Republic of China under drafting.