论行政调查权的授予

On Empowerment of Administrative Investigation Power

规范行政调查权的授予,应当考虑我国的行政法治现实,以类型化为基础,区别任意性调查与强制性调查,主要解决法律保留原则的适用问题和概括授权与具体授权问题。关于法律保留原则,强制性调查必须严格适用;任意性调查无须苛责。关于概括授权与具体授权,强制性调查应当以行政机关组织法的概括授权为基础,再加上行政行为法的具体授权;任意性调查只要行政机关具有组织法上的概括职权,就可以在取得相对人配合的情况下实施。

When regulating the empowerment of administrative investigation power the reality of China＇s rule of administrative law and categorization should be taken into consideration as basis to distinguish discretionary investigation from mandatory investigation in order to mainly solve the problems of the application of the legal reservation principle and relation between general empowerment and specific empowerment. With regard to the legal reservation principle, mandatory empowerment should be applied to strictly but discretionary investigation not. With regard to general empowerment and specific empowerment, the former should be based on both the general empowerment by organic laws of administrative bodies and the specific empowerment by administrative behavior laws, while the later can be carded out under only the cooperation of the counterpart so long as administrative bodies are generally empowered in organic laws.