行政行为效力体系重构的“两质态论”与“三效力说”

“Two-Quality-State Theory” and “Three-Effect Theory”:Reconstruction of the effect of administrative act

公定力的本质其实就是行政行为的形式效力,公定力理论本身存在着无法克服的致命缺陷,应该以行政行为的"形式效力理论"取代公定力理论。在效力形态上,行政行为效力有形式效力与实质效力之分,即行政行为效力的"两质态论";在效力内容的具体构成上,行政行为效力可以分为存续力、拘束力与实现力,即行政行为效力的"三效力说"。"三效力说"与"两质态论"之间是内容与形式的关系。对于行政行为效力体系的理论建构而言,二者不可分割、缺一不可;前者为"效力内容论",后者为"效力形态论",正是二者的对立统一,才构成了完整而又科学的行政行为效力体系。

The presumptive legality in essence is formal legal effect of administrative act, because the presumptive legality theory can not be retained by correcting its fatal mistakes, and it should be replaced by the ＂formal legal effect theory＂ of administrative act. In effect form, the effect of administrative act can be divided into formal legal effect and substantive legal effect, namely the ＂two quality-state theory＂ of the effect of administrative act. In the specific content of the effect of the constitution, the effect of administrative act consists of existence effect, binding effect and implementation effect, and namely ＂three effect theory＂ of the effect of administrative act. Between ＂three-effect theory＂ and ＂two-quality-state theory＂ is the relationship of content and form of the effect of administrative act. As to constructing the theories of the effect of the administrative act, ＂three-effect thei3ry＂ and ＂two-quality-state theory＂ are inseparable and indispensable; the former is ＂on effect content＂, the atter is ＂on effect quality and state＂, and it is the unity of opposites of the above two, which constitutes a complete and scientific system of the effect of administrative act.