法律法规授权组织的行政主体制度构建——基于高校行政诉讼败诉案件的思考

System Construction of Authorized Organization Administrative Subject——Based on Administrative Litigation Defeated Cases of Colleges and Universities

社会组织经法律法规授权成为行政主体,我国高校是一个典型。梳理高校的大量行政诉讼败诉案例可以发现,其作出违法行政行为有主体组织制度上的成因。高校行使法律法规特别赋予的国家行政权,办理学生违纪违法的案件,能作出影响学生学籍学历学位的行政行为,但却没有专门的执法执纪机构和具有法律资质、法治能力的工作人员。通常是以原自治管理组织的机构设置和人员配备来直接承接行政主体职能,形成“单一主体构造”与同享社会自治权和国家行政权“双重性质权力”的不匹配,明显欠缺依法行政的基础和能力。对此,需要拓展我国现行的授权理论,在现有“授权正当性”“授权组织法律地位”和“行政行为及程序规范”的内容体系中,研究补充授权组织的行政主体组织构造理论,确立行政主体的组织要素,推进主体制度的建设。在国家层面,应将授权组织一并纳入法治政府建设的范围,完备授权立法的授权规范、主体规范和行为规范,加强对授权组织的行政监管。在社会组织层面,应培育授权组织的行政主体意识,设置能胜任行政主体职能的专门执法执纪机构,配备专业化的法治工作人员。

Social organizations are authorized by laws and regulations to become administrative subjects,and our colleges and universities are one of the typical ones.Combing through a large number of administrative litigation defeated cases of colleges and universities,it can be found that there are causes of subject organization system for them to make illegal administrative acts.Colleges and universities exercise the state administrative power specially granted by laws and regulations to handle cases of student discipline violations and can make administrative acts affecting students'academic degrees,but they do not have special law enforcement and discipline enforcement agencies and staff with legal qualification and rule of law ability.Usually,the former self-governing organizations are directly taking over the functions of the administrative body with their institutional settings and staffing,forming a mismatch between the"single body structure"and the"dual nature of power"of the self-governing power and the administrative power of the state,which obviously lacks the foundation and capacity for administration according to law.Capacity.In this regard,it is necessary to expand the existing theory of authorization in China,and in the existing content system of"authorization legitimacy","legal status of authorized organizations"and"administrative behavior and procedural norms",it is necessary to study the organization of administrative subjects that supplement authorized organizations.It is necessary to study the theory of organization of the administrative subject that supplements the authorized organization,establish the organizational elements of the administrative subject,and promote the construction of the subject system.At the national level,the authorized organizations should be included in the scope of the construction of the rule of law government,complete the authorization,subject and behavior norms of the authorized legislation,and strengthen the administrative supervision of the authorized organizations.At the level of social organizations,the administrative subject awareness of authorized organizations should be cultivated,special law enforcement and disciplinary agencies that are competent to perform the functions of administrative subjects should be set up,and professional rule of law staff should be equipped.