论行政法规范的援用

行政法的援用既是一个行政法的法律产出技术问题,又是一个行政法的法律适用问题,其在行政法治体系和行政法学体系中本应具有非常重要的地位。但令人不解的是该问题在目前行政法学中还是一个理论空白,理论上的不成熟严重制约了其在行政法治实践中的良性化格局。为了使该问题引起学界的关注并对行政法治进程有所助益,本文对行政法援用的若干重大理论和实践困惑作了初步厘清,并构设了行政法不宜隔位援用、行政法规范规制同一事项不宜多次援用、正式法律渊源不宜用非正式的行为规则、实体规范不宜再作实体性援用、程序性规范不宜再作程序性援用等规范化援用的要件,指出了行政法援用走上规范化的若干路径。

On the Citation of Administrative Legal Norms

Citation of administrative law is technologic matter of law production and application of administrative law. It should have played a very important role in system of rule and science of administrative law. However, the matter is still a theoretical gap in science of administrative law. Immaturity in theory seriously restricts its good pattern in practice of rule of administrative law. In order to have the academic circle pay attention to it and be beneficial to progress of rule of administrative law, this article makes an initial collation and clarification on several important theory and practice puzzlement, establishes such essential conditions of standardized citation as it is inadvisable to cite administrative law on every other position, to repeatedly cite regulations of administrative law which stipulate the same matter, to cite informal norms for formal sources of law,to be substantive citation for substantive regulations and to be procedural citation for procedural regulations, and mentions several methods of standardization of citation of administrative law.