行政行为概念生成的价值争论与路径选择

The Value Debate and Path Choice of the Generation of the Concept of Administrative Act

迈耶以司法裁判为范本,以法安定性为核心价值追求,创造了以个体化、明确化和规制性为主要特征的行政行为概念,并通过行政行为的司法化实现其法治国的理想。以狄骥为代表的法国先贤认为,德国行政行为概念的分散化、个体化、主观主义特征难以适应现代公法的需要。在社会团结思想的引领下,法国学者以行政和司法之间的权力分立为背景,以客观合法性为主要价值追求,逐渐清除了意思表示、行政法人资格、法律效果这三个构成要素中的主观主义成分,塑造了统一、客观的行政行为概念。德法两国行政行为概念生成中的主观主义与客观主义价值争论,揭示了行政法治实现的多元路径。

Based on the judicial decision and the core value of legal stability, Mayer created the concept of administrative act, which is characterized by individuation, explicitness and regulation, and realized his ideal of ruling the country by law through the judicialization of administrative act. The French schors, represented by Duguit, think that the concept of administrative act in Germany has obvious characteristics of decentralization, individuation and subjectivism, which is difficult to meet the needs of modern public law. Therefore, under the guidance of the thought of social solidarity, the French scholars, with the background of the separation of powers between the administration and the judiciary and the pursuit of the maintenance of legality, gradually cleared away the subjective elements of the three elements of expression of will, administrative authority and legal effect, and created the concept of objective administrative act. The different path of the generation of administrative act in France and Germany reveal the different value orientation and the different paths of the realization of administrative rule of law.