行政审批制度改革与行政许可效力的类别化扩张

The Reform of Administrative Licensing System and the Categorized Expansion of the Effect of Administrative License

在行政审批制度改革背景下,增设行政许可难度极大,实践中出现了"借用"许可的做法,其本质是行政许可效力的类别化扩张,即同时扩张了行政许可设定规范和行政许可决定的对事效力。这种做法能够及时回应实践需要,部分弥合法律规范和社会实践之间脱节产生的缝隙,并避免对《行政许可法》的破坏,但也存在形式合法性问题和被滥用的风险。在行政审批制度改革仍然以从"只减不增"为主要基调的情况下,要解决这一问题,应当明确行政许可进行类别化扩张需要适用设定者保留的空间,并建立有条件的"类别许可"制度。

Under the background of the reform of administrative licensing system, it is very difficult to add administrative licenses. In practice, the practice of"borrowing"licenses have emerged. Its essence is the categorized expansion of the effect of administrative license by expanding the effect of both administrative licensing rules and administrative licensing decisions. This approach can respond to practical needs in a timely manner, bridge the gap between legal norms and social practices partially, and avoid administrative agencies from damaging the Administrative Licensing Law in a worse way. But there are still formal legitimacy issues and risks of abuse involved. While the reform of administrative licensing system is still taking"only decrease"as its main tone, to solve this problem currently, it should be clarified that the categorized expansion of the effect of administrative license requires to apply the space reserved for the setters of administrative license, and to establish a conditional "category license" system.