摘要
行政自制作为行政法治发展的路径之一,既与宪政和外部行政法的前提和框架作用密不可分,也是行政自组织的必然结果。行政国家的权能扩张已经使立法机关的事前控制和司法审查的事后控制力不从心,除了加快宪政和外部行政法建设之外,完善内部行政法,通过行政自制弥补外部行政法的功能性不足,以此推进中国行政法治发展,是一条必要的、有益的、有效的路径。
Administrative self--restraint is an autonomous activity by the administrative system or administrative bodies to bind their actions and make administrative power exercised in lawful and reasonable scope and track. It is a way of self--control of illegal or improper administrative ac- tions with a series of internal mechanisms, such as self--prevention, self--discovery, self--con- tainment and self--correcting.
Administrative self--restraint is a new tool to control administrative power, and its premises lie in the universal phenomena of administrative self--restraint, functional defects of legislative and judicial power, and the spring of internal administrative law. As one of the new approaches to develop the rule of administrative law, administrative self--restraint has close relationship with constitutionalism and external administrative law, and is also a necessary result of administrative self--organization. According to the theory of constitutionalism, administrative power should not only has external restriction, but also pursue self--restraint autonomously so as to realize the aim of constitutionalism. Furthermore, external administrative law has provided external press and conduit for administrative self--restraint through delegated legislation and judicial review, thus become the necessary frame of administrative self--restraint. Finally, administrative subjects can realize self--restriction, self--regulation and positive administration by administrative organiza- tional structure, internal administrative rules and moral standards.
The phenomena of administrative self--restraint have reflected some functional defects of leg- islative and judicial organs in promoting the rule of administrative law in China. Nowadays, the expansion of the power of the administrative state has made the advance control by legislative or- gan and the ex--post control of judicial review incapable to provide effective supervision. There- fore, in addition to speed up the construction of eonstitutionalism and external admi
出处
《法学研究》
CSSCI
北大核心
2010年第1期35-47,共13页
Chinese Journal of Law
基金
国家社科基金重大项目"构建和谐社会的法律制度保障"(项目批准号:05&ZD043)阶段性成果之一。
关键词
行政法治
行政自制
内部行政法
外部行政法
the rule of administrative law, administrative self--restraint, internal administrativelaw, external administrative law
