行政检查权实体法律控制研究

行政检查涉及公安、工商、海关、税务、环保、质检、卫生防疫、医保等国家行政管理活动的各个领域,是行政机关频繁采用的执法方式之一.由于行政检查具有职权性、强制性的特点,行政检查的实施经常会涉及宪法所保护的基本权利,给相对人权益造成重大的影响.因此,如何将行政检查活动置于适当的法律制约之下,即如何有效对行政检查权进行法律控制就成为依法行政的重点内容.     

行政追偿法律关系初探

行政追偿是行政赔偿制度的有机组成部分,也是行政赔偿的派生制度。在界定和分析行政追偿的概念和特征的基础上,从法律关系的角度研究行政追偿制度,能使我们更深入地理解行政追偿的性质,从实体性和程序性要求两个方面认识行政追偿制度,并对我国现行的行政追偿制度进行完善。     

行政计划及其法律规制

面对市场失灵 ,行政计划可以发挥政府的积极作用 ,有效地实现行政任务 ,但这需要一个重要的前提 ,即行政计划必须遵循依法行政原则。所以 ,有必要研究行政计划的性质、制定程序以及法律救济问题 ,并用法律的形式来规制行政计划。     

浅析中美行政听证制度

程序法治已经成为现代法治行政的路径选择,行政程序在行政法治中发挥重要作用,听证制度是行政程序的核心内容,美国1946年《联邦行政程序法》最早在法律上确立听证程序,听证是参与民主发展的结果,行政机关在作出对相对人及利害关系人的权益产生影响的决定之前,允许其参与到行政程序中,听取其陈述、申辩,有利于保护其合法权益,增加其对行政决定的可接受度,实现行政管理目标,保障行政决定的合法性和正当性。简要介绍听证制度的理论基础,对中美听证制度在适用范围、听证参加人、听证主持人及听证笔录效力上进行对比,指出我国听证制度的缺陷,并提出完善建议。     

析授益行政行为的制度构造

授益行政行为是赋予公民、法人某种权益,或解除其某项义务的行政行为.基于政府的授益职能法定,行政行为所涉领域更加宽泛.确定授益行政规则,归纳其范畴,是建立授益行政法律制度的前提,加强对授益行政行为在司法实务中的研究,更是政府从强权型政府转变为服务型政府,行政法冶国家建设不可或缺的要素.     

德国的行政执行法律制度

德国的行政执行是指由行政机关通过相应的行政管理程序强制性地促使公民或者其他法律主体履行公法上的义务。     

行政相对人诉权保护初探

行政诉权是公民、法人和其他组织要求人民法院以判决方式保护其合法权益的权利。强化对行政管理相对人诉权的保护,是行政诉权保护的价值倾向。本文通过对行政诉权的特征、价值取向分析,提出了完善行政相对人诉权保护的立法构想。     

构建行政指导救济制度初探

行政指导作为一种新型的行政手段,被广泛地运用于当今中国的各个行政领域。由于目前行政指导缺乏法律法规规范,行政指导侵犯相对人权益的事实大量存在。从理论和实践的层面,分析构建行政指导救济制度的重要性与必要性,并提出其具体的构想,将促使行政指导在法律规范下健康发展。     

建立我国行政许可听证制度之构想

将听证制度引入行政许可过程之中,是对行政许可权进行程序控制的一种良好方式.本文论述了建立我国行政许可听证制度的重要意义,提出了我国行政许可听证的制度设计.     

Hypotheses on the Italian administrative system

Why is the private economy in Italy thriving, while the public sector is so poor? This article spells out the general characteristics of the structures and procedures of the public sector and outlines the criteria on which to judge its efficiency in order to proceed to the presentation of four explanatory hypotheses.

The first hypothesis is an economic one: the private sector may have exploited the public sector, which bears costs that are to the direct advantage of the private economy. The second hypothesis is social: the public sector is poor because it is a means of taking on labour from the underdeveloped South, becoming in this way a social buffer. The third hypothesis is political: the administration is used to secure political support for the ruling parties (and in particular, for the Christian Democratic Party). The fourth hypothesis is historical: the administration is badly run because, as a result of the Fascist experience, Italians fear any form of ‘Bonapartism’: and it is badly organised because the public sector's take‐off has been delayed and the pace imposed on its development has been excessive. In the last section some remedies are suggested and some conclusions are outlined.     

Regulatory inspection and the changing legitimacy of health and safety

The regulation of conduct via law is a key mechanism through which broader social meanings are negotiated and expressed. The use of regulatory tools to bring about desired outcomes reflects existing social and political understandings of institutional legitimacy, the meanings attached to regulation, and the values it seeks to advance. But these contextual understandings are not static, and their evolution poses challenges for regulators, particularly when they reflect political framing processes. This paper shows how inspection has been reshaped as a tool within the United Kingdom's health and safety system by changes in the meanings attached to the concept of “risk‐based regulation.” While rates of inspection have fallen dramatically in recent years, the nature and quality of inspection have also been fundamentally reshaped via an increasingly procedural and economically rational “risk‐based” policy context. This has had consequences for the transformative and symbolic value of inspection as a tool of regulatory practice.     

Non-random assignment,vehicle safety inspection laws and highway fatalities

In this study, the distribution of inspection laws across states is endogenously determined by the relative strengths of lobbying groups within states. Previous studies that treat the laws as exogenous and find a 5 to 15 percent reduction in fatalities may have produced biased results. A selection bias model is developed in which non-random assignment is taken into account. Two equations are estimated: one explaining how many inspections are required, and the other explaining the effects of the inspections on fatalities per capita. Using single-equation techniques, results are obtained that are similar to prior studies. In the two-equation model that accounts for non-random assignment, inspection laws are not found to significantly reduce fatalities per capita.     

论行政问责制的理论渊源

行政问责制作为一种权力监督与制约的制度安排,源于西方民主政治思想。其中社会契约论、人民主权论和分权制衡论是其最基础的理论渊源。社会契约论是一种用契约关系解释社会和国家起源的政治哲学理论。人民主权理论集中表达了国家的一切权力归属于人民、来源于人民并服务于人民的政治理念。分权制衡论是指国家的立法、行政、司法三种权力分别由议会、内阁(或总统)和法院掌握,各自独立行使职权又互相制衡的制度安排。     

Welfare policy: The administrative frontier

The process of national welfare reform has been overtaken by local reform as states implement experimental programs under federal waivers. Most of these initiatives attempt to enforce work or otherwise control the lives of the dependent in return for support. Research, which traditionally stressed the social and economic aspects of welfare or poverty, must be reoriented to address the administrative issues raised by the emerging paternalism. A combination of field interviewing and analyses of reporting data can track implementation and connect program operations to outcomes. Such research assesses program performance less definitively than experimental trials do but is more useful to operators and more relevant to current program goals. The frontiers of welfare research, like welfare policy, are institutional.     

关于行政组织变革的若干思考

行政组织为了适应内外部环境的变化而必须对其组织结构、职能和管理技术等方面进行变革,这不但有利于行政组织提高其绩效水平,摆脱危机,增强其合法性,而且还能促进行政组织内部人员的职业生涯发展。成功的行政组织变革需要变革的领导者制订明确的变革程序,选择适合组织自身状况的变革方式。     

The potential for work enforcement: A study of WIN

Given the impediments around them, can welfare recipients be required to work? Most analysts have answered no. They say the recipients are usually kept from employment by socioeconomic barriers, such as insufficient jobs, and the disincentives to work inherent in welfare. Studies of recent AFDC work programs make them look promising but do not directly address the potential for work enforcement. This article, a cross-sectional study of state WIN programs in 1979, suggests that work requirements could raise work levels substantially despite the impediments. But requirements probably do not improve the quality of jobs recipients are able to get. Therefore, enforcement serves the goal of integration, but to achieve greater economic equality will require additional reforms.     

国外行政公开制度的发展趋势

国外行政公开制度的迅猛发展，越来越引起人们的广泛关注和深入思考。这场大规模的行政公开运动，有其深刻的思想、政治、社会和经济动因，也有较为明显的发展趋势。分析和把握国外行政公开制度的发展趋势，有利于我们更好地审视和推动国内行政公开制度的建立与发展。     

The U.S. study of work incapacity and reintegration

In many countries, including the United States, the number of persons being awarded long-term or permanent disability benefits has risen dramatically in recent years. Government agencies, advocates for the disabled, and others are looking for ways to help persons with disabilities return to the labor force. The Work Incapacity and Reintegration (WIR) Study was developed to address that issue. The United States and five other countries--Germany, Denmark, Sweden, Israel, and the Netherlands--have participated in a cross-national study of work incapacity under the auspices of the International Social Security Association. The study had two objectives: to examine the factors that influence the pattern of work resumption among persons disabled by a back condition and to identify the medical and nonmedical interventions that are most effective in helping such persons reenter the labor force. Samples for the U.S. national study were drawn from four cohorts: Social Security Disability Insurance (DI) beneficiaries, Supplemental Security Income (SSI) beneficiaries, and recipients of temporary disability insurance (TDI) benefits from the states of California and New Jersey. Only the TDI recipients were included in the comparative study. This article discusses the study design and methodology and summarizes the findings of the U.S. national study. Findings from the U.S. study show significant differences between the two cohorts in terms of work resumption and other characteristics. The proportions of respondents from the TDI cohorts who were working at the third and final study contact ranged from 53 percent to 65 percent, compared with less than 5 percent of the DI and SSI respondents. Respondents from the DI and SSI cohorts were on average about 10 years older than the TDI respondents, were less well educated, and reported more physical demands in their usual work. They also reported lower levels of functional capacity, higher levels of pain, and a much greater tendency to have other chronic illnesses. The types of medical treatments provided were remarkably uniform across cohorts and, within cohorts, between those who did and did not resume working. Thus, no medical intervention was identified that showed a significantly higher success rate in terms of facilitating a return to work. However, changes made in the work environment by the employer were an important factor in work reintegration; about 80 percent of respondents who resumed working did so with the help of workplace accommodations. In addition, since respondents with fewer physical demands in their job were more likely to return to work, there appears to be some potential for job retraining as a means of promoting a return to work. The Social Security Administration should consider these findings in developing strategies to help disabled workers reenter the labor force.