法治视角下浅析我国的行政指导及其制度构建

Analysis on Chinese Administrative Guidance and Its System Construction under Legal Perspective

较之源远流长的行政规制、行政处罚等传统行政行为而言,最近几十年我国才普遍兴起的行政指导仍然稚气未脱。在我国,由计划经济转向社会主义市场经济的过程中,行政指导被广泛的应用于政府工作中。由于一部分行政指导确实是在没有法律依据的情况下实施的,而行政指导又是行政主体一种不可或缺的公务行为,因而具有一定的侵权可能性。党的十八届四中全会提出全面推进依法治国,建设法治政府,因此为了实现法治行政的目标和保护行政相对人的合法权益,应加快行政指导法治化的步伐,逐步构建我国完善的行政指导法律制度体系。

Compared with traditional administrative acts with long history such as administrative regulation, administrative punishment, administrative guidance arising widely just in recent years is very young. In China, in the reform course from planned economy to socialist market economy, administrative guidance is widely applied to government work. Part of administrative guidance is enforced under the condition without relevant laws, and it is performed by administrative law subject based on official business, therefore it is likely to infringe. The Fourth Plenary Session of the Party＇s 18th proposed promoting the rule by law, the construction of govemment under the rule of law. In order to realize administrative ruling by law and protect legal interests of private party in the administrative process, we should hasten pace of administrative guidance legislation, and gradually construct the legal system relevant to administrative guidance.