海峡两岸行政命令合法性审查之比较

A Comparison of the Legality Examination of Administrative Order between Taiwan and China's Mainland

行政命令是行政行为法的重要组成部分。海峡两岸的行政法在各自发展的过程中,形成彼此联系又相异的特点。我国台湾地区行政命令体系比较完整,行政命令是与行政处分相对应的概念,属于抽象行政行为,大陆行政命令则学术界与实务相背离,在学术界往往理解为具体行政行为。合法性审查是行政命令法治化的重要手段,主要包括对行政命令发布主体权限的审查、行政命令内容合法性审查以及行政命令发布程序合法性审查等方面。两岸有着不同的行政命令合法性审查模式,在法理上台湾地区行政、立法、司法、考试及监察机关均可以审查行政命令的合法性,大陆行政命令应首先统一认识,并纳入抽象行政行为范畴,通过行政、立法、司法予以监督。

Administrative order is an important part of administrative act of law. In their development, the administrative acts of law in Taiwan and China's Mainland have formed their connection with each other in spite of their uniqueness. The law system in Taiwan is more complete. Administrative order there, a concept in contrast with administrative resolution, belongs to abstract ad ministrative action, whereas its counterpart in China Mainland is generally taken as concrete administrative action. Legality exam ination is a vital means to legalize administrative order. It accounts for the examination of the subject who gives the administrative order, the examination of the legality of the essence of the administrative order and the examination of the issuing process of the administrative order, etc. Taiwan and China's Mainland have different models of legality examination of the administrative order. In Taiwan, the administration, legislation, justice and supervisory institution all have the right to examine the legality of administra tive order. Administrative order in China's Mainland should be categorized in abstract administrative action, so that it can be su pervised by the administration, legislation and justice.