行政执法检察监督若干基础问题研究

Study on Several Basic Problems of Prosecutorial Supervision of Administrative Law Enforcement

行政执法检察监督的正当性、内外界限及方式属于尚待厘清的基础问题。行政执法检察监督的正当性源于人民代表大会制度下国家治理对国家权力配置的需要。对行政执法活动的监督权,是检察机关法律监督权的内含权能之一。广度上,行政执法检察监督原则上限于对具体行政行为的程序问题进行监督,但允许有法律列举的例外;顺序上,其应在行政诉讼之前充分展开,尊重司法监督最终性;深度上,其应限于对合法性的监督,止步于对合理性的监督;倾向上,其应侧重于从保护公共利益、个人利益的角度出发展开监督。具体而言,检察权可以通过定期视察、一般调查、争议协商解决、检察建议、监督督促、支持起诉、提请督促、提请审查、监督诉讼等方式实现对行政执法活动的监督。

Basic problems of prosecutorial supervision of administrative law enforcement such as its legitimacy, inside and outside boundaries and mode, need clarification. Its legitimacy comes from national governance＇s needs of state power disposition under the national people congress system. The supervisory authority of administrative law enforcement is one of internal functions of the procuratorial organ＇s legal supervisory authority. The prosecutorial supervision of administrative law enforcement, in the extent, is limited to supervision of the procedure of specific administrative acts in principle with exception of legal enumerations; in the order, is fully implemented before the administrative litigation and respects the lastness of juridical supervision; in the depth, is limited to supervision of legitimacy and stops with supervision of reasonability; in the tendency, places emphasis on supervisions of public interest and personal interest protection. The supervisory authority would supervise the administrative law enforcement specifically by regular inspection, general inquiry, dispute negotiated settlement, prosecutor propose, supervision and enforcement, supporting indictment, submitting to enforcement, submitting to review, lawsuit supervision.