论行政行为的构成要件效力

On the Effect of an Administrative Act as a Constituent Element

行政行为的构成要件效力是指无审查权的行政机关和法院应尊重已生效的行政行为,受行政行为的拘束,并将其作为自身决定的构成要件的事实。这一效力产生于行政行为生效之时,拘束对行政行为具有审查权的法院、复议机关以及对行政事务真正享有管辖权的主管机关之外的其他所有国家机关。之所以承认构成要件效力,主要是基于宪法维度的权力分立与机关忠诚、行政系统内的权限分配以及行政的一体性。藉由构成要件效力,行政机关的权限以及法的安定性得以确保。行政行为构成要件效力的拘束效果是以禁止废除为基础的禁止偏离。通常具有构成要件效力的只有形成性行政行为,而不包括确认性行政行为,由此也能给我国的民行交叉、刑行交叉案件提供部分解决路径。

The effect of an administrative act as a constituent element means that the administrative authority and court without the power of review should respect the administrative act with effectiveness,be bound by such administrative act and regard it as the fact in deciding the constituent element by themselves.Such effect is created at the time of the administrative act becoming effective and binding upon all state organs other than both the court and the review authority with the power of review as well as the competent authority enjoying real jurisdiction over administrative affairs. The reasons for recognizing the effect as a constituent element are mainly the separation of power and the loyalty of the organs on the constitutional dimension,the distribution of authorities within the administrative system and the unity of administration. the administrative authority and the stability of the law are ensured by the effect as a constituent element. The binding result of the effect of an administrative act as a constituent element is forbidden deviation on basis of forbidden revocation. Usually only a formative administrative act rather than a confirmative administrative act can have the effect as a constituent element,which can also provide a partial solution to the case involving both civil and administrative nature in China.