积极行政的崛起与法律保留原则适用的冲突及解决

The Conflicts between the Development of Positive Administration and the Application of Legal Reservation Principle and the Solutions to Them

法律的保留构成了法治主义的中心,法律保留强调行政作用一定要依据相关的法律才能执行。法律保留原则发轫于传统行政作用的侵益性,并滥觞于消极行政范围的适用。然而,在积极行政崛起的背景下,传统法律保留原则的适用与积极行政产生抵牾与冲突,通过组织法依据、实体法依据和遵循程序法行政的阐释,可以寻找破解二者冲突与困境的路径。

Legal reservation is the center of ruling with law. It emphasizes that administration can work only when it follows relative law. The principle of legal reservation originated from administration＇s feature that it would damage interests, and has been overused in the field of negative administration. However, with the development of positive administration, there are contradictions and conflicts between the traditional legal reservation and positive administra- tion. We should try to explore the solutions to the conflicts by explaining the organic law basis, substantive law basis, and administration following procedural law.