综合执法权下沉乡镇街道的实践样态、现实困境与法治回应

The Practice Pattern,Realistic Dilemma and Legal Response of the Delegation of Comprehensive Enforcement Power to Towns and Streets Government

既有的“行政委托论”和“法律法规授权论”无法有力解释“综合执法权交由乡镇街道行使”的执法体制改革,有必要对此作出法治回应。理论层面,澄清“行政授权理论”内涵外延,明确“法律法规规定+行政命令决定”的职权转移模式才属于“行政授权”的范畴,法律法规授权与行政授权属于相互并列的两个概念;实践层面,从组织法角度对乡镇街道进行概括性赋权,纾解单行法律法规授权局限性与综合行政执法需求概括性之间的紧张关系;明确执法权下沉权力清单的间接效力,赋予乡镇街道必要的选择空间,合理配置下沉执法权;完善执法权下沉的评估制度与审批程序,建立双向互动机制。

The existing theories of“administrative entrustment”and“legal and regulatory authoriza⁃tion”fail to provide a compelling explanation for the reform of the law enforcement system which involves the delegation of comprehensive enforcement powers to towns and streets government.It is necessary for the academic field to respond with rule-of-law considerations.From the theoretical perspective,it is important to clarify the meaning and extent of“administrative authorization theory,”specifying that the transfer of powers determined by“legal and regulatory provisions as well as administrative orders”belongs to the realm of“administrative authorization.”Legal and regulatory authorization and administrative authorization are two parallel concepts.From the perspective of practice,towns and streets government should be endowed with generalized empowerment from the perspective of organizational law,to ease the tension between the limitation of authorization by individual laws and regulations and the general demand for comprehensive ad⁃ministrative enforcement.Additionally,the indirect effect of the list of powers involved in the delegation of enforcement powers should be defined to grant towns and streets necessary space for selection and to allocate enforcement powers rationally.Finally,it is essential to improve the evaluation system and approval proce⁃dures for the delegation of enforcement powers by establishing an interactive mechanism.