模拟审批的运行前提与法制建构——基于16个城市模拟审批规范性文件的考察

Operational Premise and Institutional Construction of Simulated Approval Based on Investigation of 16 Cities’ Regulations on Simulated Approval

模拟审批允许一边补充材料,一边审批,实现了行政审批模式的创新。各行政部门之间的平等协同关系、模拟审批意见具备的内部行政行为结果的法律属性,共同形成了该审批模式的运行前提。针对模拟审批在实践中出现的适用范围同质化、正当程序空白、运行不畅等问题,宜在法治思维的涵射下,通过法治助推协同关系的形成、利益衡量确定模拟审批的适用范围、增设限制条件控制运行风险、申请人参与和说明理由构建正当程序,完善既有的模拟审批模式。

The simulated approval allows sending supplementary materials while approving simultaneously,which realizes the innovation of the administrative approval.The equal and synergistic relationship among the administrative departments and the legal attributes of the results of the internal administrative acts of the simulated approval opinions have jointly formed the operating premise of the approval model.In view of the problems such as homogeneity of application scope,lack of due process and poor operation of simulated examination and approval in practice,it is advisable to determine the application scope of simulated examination and approval through the formation of synergistic relationship promoted by the rule of law,the balance of interests,the addition of restrictive conditions to control operational risks,the participation of applicants and the construction of due process to explain the reasons,so as to perfect the existing simulation examination and approval under the connotation of the rule of law.