对行政应急性原则研究的回顾与展望

行政应急性原则在20世纪80年代末被一些学者明确提出,而从20世纪90年代中后期以来,一直处于被遗忘的角落。“非典”又让人们重新讨论起这个话题。但无论是“非典”时期的应急实践,还是现代公共应急制度和法治的发展趋势,抑或行政法基本原则本身的特征和功能,都说明行政应急性原则不应是我国行政法的基本原则。我们应完善突发事件和紧急状态处置法,用合法性去整合现实正当性,用现代法治精神和原则来指导和规范行政紧急权力。

Review and Prospect of Research on Principle of Administrative Emergency

It was at the end of 1980s that the principle of administrative emergency was clearly put forward by some scholars, but this principle has been forgotten since mid of 1990s. It was SARS, which happened in 2003, that made people discuss this topic again. However, according to the practice during the period of SARS, or the developing trend of modern system of public emergency management and the rule of law, or the character and function of basic principle of administrative law, the principle of administrative emergency should not be the basic principle of China's administrative law. We should perfect the emergency law, make practical needs conform to legitimacy and direct or standardize administrative emergency powers by modern spirit and principle of the rule of law.