论“行政制规权”的概念建构与法理阐释

On the Concept Establishment and Theoretical Explanation of Rule-making Power of Administrative Bodies

在我国的宪制结构下,有必要引入"行政制规权"与"行政规则"两个概念,以统合行政机关制定规则的现象,实现逻辑自洽、提高现实解释力。从本质上看,"行政制规权"是以规则制定为核心使命的行政权,包含解释权能、自治权能和建构权能。从权源上看,"行政制规权"部分属于固有权能、部分源于法律授权和行政机关的宪制使命。按照内容和目的,我国的"行政规则"可分为立法性规则、解释性规则、内部组织性和程序性规则、技术性规则、一般性政策陈述和指导意见。行政机关在法律上不享有固有立法权,其制定立法性规则的权力必须源于法律的授权。"行政规则"具有解释、建构与创制功能,其效力应当遵循关系视角,契合宪制结构中行政权与立法权、司法权的关系。

It's necessary to introduce two concepts of "Rule-making Power of Administrative Bodies" and "Administrative Rules" under the constitutional structure of China to integrate administrative bodies' rule-making behaviors, realize logic self-consistency and improve explanatory power. In essence, the rule-making power of administrative bodies is a kind of administrative power, the core mission of which is to make rules, and includes interpretation power,autonomy power and constructive power. From the perspective of the source of power, part of it is inherent and part of it comes from legal authorization and the constitutional mission of administrative bodies.According to the content and objective, the administrative rules of China can be categorized into legislative rules, interpretative rules, internal organizational and procedural rules, technical rules and general policy statements and guidance. Administrative rules have the function of interpretation, construction and creation, and their effectiveness should be determined by following the perspective of relationship which means that the relation between administrative power and legislative power and between administrative and judicial power in the constitutional structure shall be observed.