批示行政:一个行政惯例的存在与检视

Instructional Administration: The Existence and Review of an Administrative Practice

行政批示本是一种行政惯例,在行政权的运行中起着决定性作用,但其却没有被纳入行政法秩序的调整范围。相对于法律、法规和规章而言,行政批示虽然在规范行政权、提高行政能力和行政效率方面具有更为直接的适用性,但由于缺乏对行政批示的基本规范,失范的批示在实践中表现出来的负功能也非常明显,如批示本身的权力色彩浓厚,批示的频繁使用贻误救济时机,增加行政成本,批示为滋生懒政、怠政提供了生存空间。“依法行政”往往演变成“依批示行政”。检视行政批示的功能定位,建立备案与公开制度、报告与检查制度、批示评估制度、内部责任追究制度一套内部监督机制,对批示的失范加以规制,这是规范行政批示行为的最佳选择,对于依法行政具有重要意义。

Administrative instructions are an administrative practice that plays a decisive role in the operation of administrative power, but it is not included in the adjustment scope of the administrative law order. Compared with laws, regulations and rules, administrative instructions as a form of control have more direct application ability in restraining administrative power, improving administrative quality and administrative efficiency. Due to the lack of basic norms for administrative instructions, its negative functions in practice are also obvious. The instructions themselves reflect the striking feature of power;the frequent use of the instructions will delay the relief opportunity and increase the administrative cost;the instructions provide the living space for the breeding of lazy and idle administration.“Administration according to law” often evolves into “administration according to the instructions”. Therefore, to examine the function orientation of administrative instructions, to establish a set of internal supervision mechanism, such as filing and disclosure system, report and inspection system, evaluation system, and internal accountability system, and to regulate the irregularities of instructions are the best choice to regulate the behavior of administrative instructions, and of great significance to administration according to law.