行政法中的法律保留原则研究

法律保留原则是依法行政原则的重要内容,但法律保留原则与长期以来被认为同样是依法行政原则之一的法律优位原则存在显著的差异,法律保留原则更能体现依法行政的本质要求因而构成依法行政的特有原则。法律保留原则自近代产生以来其本身也发生了重大的变化,在"法律"的范围上从议会法发展到既包括议会法也包括行政立法;在保留的事项上从侵害行政发展到包括侵害行政、内部行政、给付行政在内的所有行政;在保留密度上从纯粹的行为法发展到既有行为法也有组织法。构成现代行政重要特征的自由裁量行为同样受发展了的法律保留原则支配。我国现行行政法治实践中法律保留原则逐渐得到重视,但是仍然存在诸多弊端。

A Research on the Legal Reservation Doctrine in Administrative Law

Though the Principle of Priority has been regarded as one of the important principles in the process of administration by law, it" s totally different from the Principle of Reservation, the latter one has become the u-nique principle in the process of administration by law because it can better embody the nature of administration by law. The Principle of Reservation has experienced profound changes since it emerges in modern times. The scope of reservation has extended from parliamentary law to administrative legislation; its casus reservatus from administration violation to all kinds of administration including internal administration and prestation administration; its reservation intensity from pure administrative act law to constitutive law. The administrative discretionary act which being the significant character of modern administration also controlled by the developed Principle of Reservation, though such principle has been gradually paid more attention than before in administrative judicial practice, more malpractice are still existed.