行政权力清单法治化的法理基础与运行逻辑

The Legal Basis and Operating Logic of the Legalization of Administrative Power List

当前权力清单改革停滞在政策层面,过于依靠行政手段,一定程度上侵害了权自法出和信赖保护原则,迫切需要法治。尽管权力清单法治化尚未上升至法律层面,但已具备一定的法律依据,不仅有宪法及其修正案提供正当的法治理念基础,也是依法行政原则的重要体现,更与《政府信息公开条例》的立法目的和基本原则相契合。此外,政策设计下权力清单的弊端、法律进路设计的优越性、主观上权力清单内含的限权性以及客观上良好的行政环境,也使其法治化具备充分的现实条件。权力清单法治化的运行理当遵循法治逻辑,通过权力、责任、程序的法定化以达到保障人权的法治归宿。

Currently the reform of power list is stalled at the policy level and relies too much on administrative means, which to some extent infringes on the principles of power deriving from the law and trust protection, urgently needing the rule of law. Although it has not been elevated to the legal level, the legalization of power list already has some legal support, it not only has the legitimate legal concept foundation provided by the Constitution and its amendments, but also is an important embodiment of the principle of administration according to law, meanwhile it conforms to the legislative purpose and basic principles of The Regulation of Government Information Disclosure. Additionally, the disadvantages of power list under the policy design, the superiority of the law approach design, the subjective limitation of power list and good objective administrative environment also provide sufficient realistic basis for its legalization. The legalization of power list should follow the logic of rule of law, and achieve the rule of law end-result of guaranteeing human rights through the legalization of power, responsibility and procedure.