行政许可标准的冲突及解决

Administrative Licensing Standard: Conflicts and Solutions

行政许可标准,是对行政许可的法定条件、程序的解释和细化,在学理上属于许可的裁量基准,在功能上构成了许可获得的限制性条件,在形式上表现为一个自上而下的"阶梯式"规范体系。在相对集中行政许可视角下,市场准入过程往往是多个单一许可组成的复合许可过程,由此产生了不同部门间实体和程序标准的冲突现象。其发生的内在机理是行政权及许可背后的部门利益与家长主义规制,外在形式则表现为复数机关参与的异位规范间的冲突,性质上多属经验冲突而非逻辑冲突。由此,解决的路径在于:一是现行行政服务中心基础上不断修正的行政协调模式;二是具有共性效力之协调技术的提炼;三是通过基准制定和公布义务的规则治理。

Administrative licensing standard is the interpretation and elaboration of the statutory conditions and procedures of administrative licensing. Theoretically it belongs to the criteria of discretion in administrative licensing, functionally it constitutes the sum of all restrictive conditions for obtaining a license, and formally it is manifested in a top-down ＂ladder-structure＂ norm system. From the perspective of relatively concentrated administrative licensing, the market access process is often a complex licensing process consisting of more than one single licensing, resulting in conflicts between substantive and procedural licensing standards adopted by different government departments. The internal causes for such conflicts are departmental interests behind the power of administrative licensing and paternalistic mode of regulation, the external manifestations of such conflicts are the conflicts between different levels of legal norms adopted by different administrative agencies, and most of them are em- pirical, rather than logical conflicts. There are three main solutions to these conflicts, i.e. , continu- ously improvement of the current mode of administrative coordination, development of general coordination techniques through the summarization of individual cases, and adoption and promulgation of a comprehensive standard on administrative discretion.