行政法法典化的路径选择

The Path Choice of Codification of Administrative Law

我国行政法法典化的启动,既是为了回应建设法治政府的需求,更是立法条件已经成熟的必然结果。对于如何编纂行政法典、应该编纂到什么程度,学界目前尚未有统一定论。行政法法典化主要存在三种路径,即直接编撰一部既包括实体法、又包含程序法的行政法典;优先制订行政程序法;提炼出行政法领域的共性,制定统一的行政法总则。直接编撰行政法典既不能满足日益复杂的行政规范需求,实践中也难以操作;优先制订行政程序法容易造成名不副实、体系混乱;制定行政法总则编虽然存在法典化解构、削弱地方自治、机械性与滞后性等弊端,但这些弊端是法典化的必然结果,另外两种路径也难以完全规避。基于立法水平与实践经验,制定行政法总则的利远大于弊,因此我国行政法法典化应当以制定行政法总则为最佳路径。

The initiation of administrative law codification of our country is not only in response to the need of building a government by law, but also the inevitable result that the legislative conditions have matured. For how to codify the administrative code, to what extent should be codified, the academic community has not yet had a unified conclusion. There are mainly three ways to codify administrative law, that is, directly compile an administrative code that includes both substantive law and procedural law;give priority to formulating administrative procedure law;refine the commonalities of the field of administrative law and formulate unified general provisions of administrative law. Directly compiling the administrative code can not meet the increasingly complex needs of administrative norms, and it is difficult to operate in practice;giving priority to formulating the administrative procedure law will easily lead to misnomer and chaos of the system;although the compilation of general provisions of administrative law has drawbacks such as codification and deconstruction, weakening local autonomy, mechanism and lag, these drawbacks are the inevitable result of codification, and the other two approaches are also difficult to avoid completely. Based on the legislative level and practical experience, the advantages of formulating the general provisions of administrative law far outweigh the disadvantages, so the codification of administrative law should take the formulation of the general provisions of administrative law as the best path.