行政批示的类型化及规范

The Typing of Administrative Instructions and Specification

行政批示一直以内部行为的方式存在,是行政权运行过程中的重要方式。按照传统理论,行政批示应是不可诉的,但在实践中是以是否对相对人的权利义务造成实际影响,而不是仅仅依照内部行政行为来判定是否可诉。同时,“个案批示”作为行政批示中的一种特殊情况,应当具有可诉性。总体上,当前从行政法视角探究行政批示的研究较为欠缺,本文在界定行政批示内涵的基础上,对其可诉性进行深入探究,并进一步讨论了行政批示的规范性问题。本文认为,为规范行政批示,应当健全行政问责制度、规范其程序和形式,公开其内容,同时,建立对个案批示的一并审查制度,既要告对外发生效力的处罚决定,也要告内部的批示行为。

Administrative instructions always exist in the form of internal behavior, which is an important way in the process of executive power operation. According to the traditional theory, administrative in-structions should be non-justiciable, but in practice, the justiciability is based on whether the in-structions have actual impacts on the rights and obligations of the counterpart or not, rather than just judging according to the internal administrative act theory. At the same time, as a special case in administrative instructions, “case instructions” should have the justiciability. In general, there are few researches on administrative instructions from the perspective of administrative law. On the basis of defining the connotation of administrative instructions, this paper makes an in-depth study of their justiciability and further discusses the standardization of administrative instructions. This paper holds that, in order to standardize administrative instructions, the administrative ac-countability system should be improved, its procedures and forms should be standardized, and its contents should be disclosed. Meanwhile, a simultaneous review system should be established for the case instructions, which should inform both the externally effective punishment decisions and the internal instructions.