论授益行政行为的废止——基于《德国行政程序法》第49条的分析

On abolishment of beneficial administrative action—— Based on the article 49 of the German Administrative Procedure Act

关于授益行政行为的废止,《德国行政程序法》第49条有专门规定。对于合法的授益行政行为,出于信赖保护以及法安定性的考虑,行政机关原则上不得废止,但特定情形下,也可废止,并对相对人的信赖损失予以补偿。至于废止生效的时点,一般仅限于废止行为作出之时,除非行政机关选择溯及至某一较迟的时点。德国的授益行政行为废止制度,无论是在废止的立法用语方面,还是在具体的授益行政行为废止内容方面,都对我国立法提供了有益的启示。

The topic of abolishment about beneficial administrative action has been specially provided in article 49 of the German Administrative Act. Generally, administrative organs don’t abolish beneficial administrative action for the sake of trust protection as well as the law of stability. But under some statutory conditions, administrative organs can also abolish beneficial administrative action and the private party’s reliance compensation must be considered at the same time. In the respect for effect of abolishment about beneficial administrative action, the effectiveness of abolishment usually happens to the future but not retroactive. However, there are some exceptions in some cases. The German act about abolishment of the beneficial administration has provided the beneficial revelation to our country both in the field of legislative language about abolishment of beneficial administrative action and about the application in specific content.