论行政惯例的适用

On the Application of Administrative Practice

行政惯例作为一种行政习惯法,在规范行政裁量、弥补行政成文法不足、实现行政公正方面发挥着不可替代的作用。行政惯例只有在行政成文法无明确规定、与法律精神和公序良俗不悖、在一定范围内长期存在并获得公众普遍确信的条件下方可适用,其适用应当遵守行政自我拘束、平等、信赖保护等原则。行政惯例如果适用不当,可能产生削弱法律权威、扭曲个案正义、导致行政僵化等负面影响。因此,当行政惯例与行政成文法相抵触或者继续适用将有碍行政公正时,行政主体应当终止其适用。同时有必要通过建立行政惯例发布制度和健全行政惯例说理制度等方式对行政惯例适用予以完善。

Administrative practice, as a customary administrative law, plays an irreplaceable role in regulating administrative discretion, making up for the lack of administrative law and realizing administrative justice. It should be applied only when there is no relevant express provision in the administrative statute law and when it has existed for long within a certain range and been universally recognized by the public. Also, it must not conflict with laws and the public order, and its application must abide by the principles of administrative self- restraint, equality and trust protection. Administrative practice, if applied improperly, could have a negative impact and weaken the legal authority, thereby distorting case justice and leading to administrative rigidity. Thus, when administrative practice is incompatible with administrative statutes or its application obstructs administrative justice, the administrative body should terminate its application. At the same time, it is necessary to perfect the application of administrative practice by establishing a sound system for the issue of administrative practice as well as by improving the system for the proper illustration of its application.