行政调查:制度的探索——以“钓鱼执法”为例证

Administrative Investigation: Institutional Exploration——Taking “Entrapment” as an Example

2009年发生的"张晖非法营运"一案,一时间把上海市交通执法部门推到了风口浪尖,社会上一边倒的现实压力迫使上海市有关方面在无奈中叫停了"钓鱼执法"。"钓鱼执法"作为一个新闻热点事件早已结束,但实践中这种诱惑调查手段的普遍存在,敦促我们在学术上进一步反思,行政程序法在行政调查中应当确立怎样的制度规则,既能维护行政机关执法中的公信力,又能保障相对人合法权益受到侵害后得到及时的救济。本文以上海市"钓鱼执法"为背景,从行政调查的内涵和性质入手,就行政调查主体、行政调查的基本原则、调查取证方法体系和救济制度几个方面提出了行政调查制度亟待完善的意见和建议。

Shanghai traffic law enforcement was pushed to the cusp because of Zhang Hui＇s ＂illegal operations＂ in 2009. ＂Entrapment＂ was forced to shut down due to the pressure from public opinion. This issue has been over as hot news, but attracted academic attention. ＂Entrapment＂ is widespread in practice, which urges us to further reflect academically. The Administrative Procedure Law should establish a set of institutional rules in the administrative investigation to maintain the credibility of the executive enforcement, as well as protect the legitimate rights and interests of counterparts, and make them get timely relief after their rights or interests infringed. This article, taking ＂entrapment＂ for example, starting from the connotation and nature of the administrative investigation, puts forward some opinions and suggestions which need to be perfect from the aspects of administrators, the basic principle, methodology and relief system of the administrative investigation.