行政许可撤回程序研究

Research on the Procedure of Withdrawing Administrative License

行政许可行为在成立时合法,但随着事后形势的演变,其效力已不再适宜,因此如何妥善处理成为亟待解决的难题。我国《行政许可法》规定了行政许可撤回这一制度,对行政许可撤回的实体内容做出了相应规定,但是其程序内容一直缺失。程序的缺失,行政机关的自由裁量自然多了份肆意和散乱,不利于保障被许可人的信赖利益。鉴于此,在正当程序原则的指引下,应具体从以下三方面来构建我国行政许可撤回程序,一是明确平行程序原则的适用;二是增加特别程序进行补充;三是引入补偿程序提高撤回决定可接受性。

The act of administrative license is legal at the time of its establishment, but with the evolution of the situation afterwards, its effect is no longer suitable. Therefore, how to properly deal with it has become an urgent problem to be solved. The Law of Administrative License in China stipulates the system of administrative license withdrawal and makes corresponding provisions on the entity content of administrative license withdrawal, but its procedural content is always missing. The lack of procedure makes the administrative organ’s discretion more wantonly and disorderly, which is not conducive to protecting the trust interests of the licensee. In view of this, under the guidance of the principle of due procedure, the withdrawal procedure of administrative license in our country should be constructed from the following three aspects: one is to make clear the application of the principle of parallel procedure;the second is to add special procedures to supplement;the third is to introduce compensation procedure to improve the acceptability of withdrawal decision.