行政备案职责的理论证成与体系构建

Theoretical Justification and System Construction of Administrative Record Duties

行政备案作为行政审批的替代性制度,被广泛运用于各个行政领域。通过梳理31份有关行政备案的规章,发现对行政主体的备案职责缺乏有效规定,体现为不同备案事项中行政主体的受理、审查标准、审查期限、决定、监督义务的模糊或缺失等。行政备案虽然是更为柔性的规制工具,但其并未弱化行政主体的职责,行政主体的备案职权实质是行政职责,明确行政主体的备案职责,不仅是实现行政备案功能的需要,更是保护行政相对人合法权益的需要。当前,由于分散立法、行政备案的职权职责关系模糊等因素,导致备案实践中行政主体的职责体系存在体系性欠缺。为了规范行政备案行为,巩固行政审批制度改革的成果,应当在将来制定的《行政法总则》与《行政备案条例》中逐一规定行政主体的接收、审查、决定与监督检查等职责。

As an alternative to administrative review and approval, administrative record is widely applied in various fields of administration. Through the analysis of 31 rules and regulations on administrative record, this paper finds that no effective regulations are imposed on administrative agencies’ obligations in the administrative record. Specifically, rules and regulations on the acceptance of administrative agencies, review standards, time limits of review, decision, and supervision in different categories of administrative record are ambiguous or absent. Although administrative record is a more flexible regulatory tool, it is still an obligation. Essentially, it is an administrative responsibility. The clarification of administrative agencies’ s obligation in the administrative record is needed not only to enable the function of administrative record, but also to protect the legitimate rights and interests of the private parties to administrative lawsuits. But a system hasn’t been put in place to require administrative agencies to fulfill the obligation of recording due to factors including decentralized legislation and the ambiguous relationship between the authority and responsibility of administrative record. In order to standardize the practices of administrative record and build on the achievements of the reform of the administrative review and approval system, this paper suggests that in the General Principles of Administrative Law and the Administrative Record Filing Regulations which will be formulated in the future, rules and regulations on obligations including acceptance, review, decision, supervision and inspection should be stipulated for administrative agencies respectively.