行政组织的法律保留

On the Statutory Reservation of Administrative Organizations

由何种主体以何种方式在何种程度上决定行政机关的组织事项,是涉及行政机关的民主性与效率性的重要问题。日本的行政组织法曾经历过天皇官制大权、高强度的法律保留、相对宽松的法律保留三个阶段变迁,有行为法、组织法、民事法等径路来确定行政组织的法律事项,充分验证了议会与行政组织关系的种种可能。我国自清末借鉴日本经验实施官制改革以来,在行政组织规定的权限上也有种种探索。现阶段囿于认识的局限性和改革的进行时,行政机关的组织法制较为薄弱。从民主主义的要求出发,凡有权代表国家行使对外管辖权的行政机关均应由法律规定其产生、任务、权限事项、领导体制和相互关系等,内部组织的具体设置和分配可由行政法规、规章规定,其他组织事项可以仅接受法律的规范。如此,既可以保证行政机关的民主性,也能保障行政机关一定的自主性和效率。

The question of who determines the organizational matters of the administration in which way and to what extent is an important issue concerning the democracy and efficiency of the administration.The administrative organization law in Japan has undergone three stages of changes,including the Emperor's official authority,rigoroushigh-intensity statutory reservation,and relatively lenientloose statutory reservation,and there are paths such as the act law,the organic law,and the civil law to determine the legal matters of the administrative organization,fully verifying the various possibilities of the relationship between the parliament and the administrative organization.Since the implementation of the official system reform in China at the end of the Qing Dynasty,based on the Japanese experience,there have been various explorations on the authority of administrative organizations.At the present stage,due to the limitations of understanding and ongoing reform processthe time when the reform is in progress,the legal framework for system of the organization of the executive is relatively weak.From a democratic perspective,the requirements of democracy,all administrative bodiesorgans with the authority that have the right to exercise jurisdiction over external matters on behalf of the state should be provided by the law on their generation,tasks,matters of authority,leadership system and mutual relations,etc.The specific setting and distribution of internal organization can be regulated provided by administrative regulations and rules,whileand other organizational matters can only be subjected to legal norms regulated by law.In this way,the democratic nature of the administrative bodiesorgans can be ensured,while also allowing them to posses and the administrative organs can also be given a certain degree of autonomy and efficiency.