原理与实践:行政组织法定原则再认识

Revisiting the Principle of Administrative Organization’s Being Established by Law:Theory and Practice

以往的行政组织法研究过分关注实践问题,对行政组织法定原则的理论探讨相对不足。行政组织成为公法问题前提是公共国家观念的确立。美国、德国、日本等国的行政组织立法实践法理依据迥异,发展路径有别,展现了行政组织法定原则内涵的丰富性。我国要以社会主义法治原则为根据,确立广义的行政组织法定原则:设立实现国家任务的各类公法上的组织机构,都要受到法律不同程度的控制。同时需要明确狭义的行政组织法定原则,即针对行政机关的组织法定原则。为此,人大的组织立法权,应当受到宪法具体规定和宪法原则明确以及隐含的限制;在授权行政机关自主决定组织细节以适应现代行政灵活性需要的同时,加强对行政机关组织创新的宪法监督。

In their studies on the law governing the establishment of administrative organizations, scholars paid too much attention to the practice, neglecting the theory of the principle that administrative organization should be established by law. Only after the establishment of the concept that the state is a public legal organization, the organization of administration has been regarded as a public law issue. Because of different legal reasons and historical developments, the legal practices of America, Germany and Japan concerning the organic law of administration show that the above-mentioned principle is very complex and meaningful. In China, we have to establish the principle in the broad sense according to the socialist rule of law that the establishment of all public law institutions which accomplish the state mission should be controlled by law to different degrees. At the same time, we have also to establish the principle in the narrow sense that the establishment of the administrative organs should be controlled by law. Therefore, the legislative power of establishing the administrative organs should be limited by the constitutional principles and articles. To get flexibility, the legislative branch may authorize the executive branch to determine the details of organizational issues. However, it should not abandon its legal duty to check out whether the innovation in orgranizing the administration is constitutionally acceptable or not.