基于实定法解释的“行政审批”概念分析

On the Analysis of Definition of Administrative Approval Based on Legal Interpretation

行政审批改革在加速进行,但是,行政审批作为一个法律概念本身却含混不清,这严重影响了行政审批改革的成效和进一步深化。界定"行政审批"应基于法律的明文规定。依据我国《行政许可法》,行政审批与行政许可是相对应的平行概念,行政审批是行政机关所实施的内部审查批准权力,行政机关所实施的外部审查批准权力则属于行政许可。"非行政许可审批"的概念有违《行政许可法》的规定,内涵模糊,应予以废除。目前被归入"非行政许可审批"中的外部审批项目,都应作为行政许可,纳入《行政许可法》的规范之内。

The administrative approval has undergone reforms, however, the legal concept of administrative approval is not clear, which seriously affect the development progress and effect of the reform. The definition of administrative approval must be based on clear- cut regulations, according to the administrative license law, it is clear that administrative approval and adminis- trative license are corresponding concepts, which means that administrative approval is the inter- nal examination and approval power among administrative agencies, at the same time, administra- tive license is the power between administrative agencies and non - governmental organizations or citizen. In addition, the concept of ＂Non -administrative -license approval＂ is contrary to the regulations in the administrative license law, so it should be abolished. Therefore, the external examination and approval items which are defined as the Non- administrative -license approval should be identified as administrative licenses on the basis of regulations in the administrative license law.