基于公民权利的行政审批制度改革——行政审批进路与行政许可本质之反思

The Reform of Administrative Approval System Based on Citizens' Right——Rethinking the Path of Administrative Approval and Essence of Administrative Licensing

唯有确立公民在行政许可制度中的主体地位,才能巩固并深化行政审批制度改革。为此,有必要批判主导当前行政审批体制改革的赋权思维。其实,赋权说既不符合行政许可的自由本质,也无法在逻辑上取得自洽。而基于自由这一基本规范,行政许可法只能是国家授予公民恢复自由、形成许可之权力的法。相应的,许可申请是公民行使权力、创设自由的法律行为,行政审批则是行政机关行使第二性行政确认权确认公民法律行为是否有效的行政确认行为。为此,我们可以修改行政许可法,确立行政许可的复权本质,确立公民形成并实施行政许可的权力,并建立相应的行政程序与形成诉讼类型来保障它。

In order to consolidate and deepen the reform of administrative approval system, it is necessary to establish the citizen subject status in this system. Consequently, it is also essential to criticize the empowerment opinion of administrative approval. In fact, the empowerment opinion is not conform with the essence of liberty of the administrative license and it is logically unsound.Based on the fundamental norm of liberty, the law of administrative license can only be the law that the state endows power to citizens to recover their rights. The application of administrative license is the legal action of citizens which aims to exercise power to create liberty. The action of administrative approval is to exercise administrative recognition power to conform the validity of citizens' legal action. We can amend the administrative license law, establish the essence of restoration of right and ensure that citizens have the power to conduct administrative license. The guarantee of administrative and legal procedure is also critical and should be built.