中德社会保障争议处理制度比较研究

中德两国在历史发展过程中逐步形成了各自独特的社会争议处理制度和模式。德国社会法院作为专门审理社会保障争议的特殊行政法院，体现了法律保护的缜密性和司法的高度专业性，适应了社会保障争议多，内容纷繁复杂，技术性、专业性强的现实需要。中国社会保障争议处理法律制度则处于形成发展阶段，因争议种类、主体不同而设置了不同的解决争议的机构，采用了不同的法律制度、程序和处理原则。本文以两国现行社会争议处理法律规定作为比较标准，按照社会争议处理的程序，分别从社会争议的范围界定、行政处理程序和制度、法院处理程序和制度三方面进行了比较研究，为中国社会保障争议处理制度提供借鉴和启示。     

Judicial review of regulatory decisions: Decoding the contents of appeals against agencies in Spain and the United Kingdom

Despite the important role that courts play to supervise the legality of regulatory agencies' actions, only few comparative studies analyze the contents of judicial appeals against regulatory decisions within European countries. This paper builds on the comparative administrative law scholarship and administrative capacities literature to analyze the content of 2,040 rulings against decisions issued by competition and telecommunications regulators in Spain and the United Kingdom. To understand the substance of the appeals, the study classifies cases according to the alleged administrative principles under breach and the regulatory capacities under challenge. Findings show a clear country-sector variation regarding the information contained in judicial disputes for both dimensions of analysis, which can be explained as a result of existing differences between the institutional settings of courts. These results offer a more in depth understanding of the political role of judicial oversight over regulatory agencies embedded in different institutional arrangements and policy sectors.     

反腐的关键:规制行政裁量权

行政裁量权由于其可能导致肆意和专断,因而成为腐败的重灾区。因此,反腐的关键在于规制行政裁量权,保证行政裁量权在法治的轨道上运行。行政裁量权的规制属于复合规制模式,包括立法规制、行政规制、司法规制以及权利规制四种规制路径。然而规制模式有其内在的局限性,公众参与作为民主理论在行政过程的投射,其所具有的民意表达、利益协商、程序正义等功能和优势,可以实现对行政裁量权的有效规制。建立起公众参与的配套制度,并完善公众参与的程序设计,可以实现对行政裁量权的有效规制,促进反腐倡廉建设的健康发展。     

行政决策的功能定位与听证笔录的效力——基于商谈理论的视角

政府行政决策权的扩张,使得已有立法控制和司法救济机制对决策权的监督约束相形见绌,行政决策的合法性问题凸显。协商民主理论主张以公众交往权力制约行政决策权,从而提供了重要的约束途径。行政决策中引入听证的目的,在于发挥其重大行政决策合法性过滤器的功能;而听证笔录效力则提供了交往权力制约行政权力的通道;从立法上确立听证笔录的法律地位,建立政府对决策听证的回应机制,是推进和完善我国行政决策听证制度的一项重要的基础性工作。     

The European elections of 1994

Legislatures frequently enact primary legislation that delegates secondary law making powers to administrative agencies. Judicial review designed to ensure that this secondary legislation is in accord with the primary legislation necessarily involves judicial interpretation of the primary legislation and hence also some degree of judicial law making. Both the relative degree of judicial law making and its causes may vary from country to country. Judicial review of secondary legislation in three countries is examined. Judicial activism is great in the United States and probably related both to congressional inefficiency in passing amending statutes and judicial recruitment and career patterns. The level of judicial activism in the UK has been low but may be increasing. It is severely constrained by the capacity of parliament rapidly to 'correct' judicial interpretations but encouraged by judicial career patterns. The formal decisions of the French Council of State show little judicial intervention against administrators' secondary legislation but such intervention may occur extensively at the stage of agency regulation drafting rather than through formal review processes.     

The congressional veto: Shifting the balance of administrative control

During the past decade, hundreds of provisions have been enacted by Congress giving that body some form of control over the projects and regulations of federal agencies. Pressures for more far-reaching measures of this sort, including a proposal to vest Congress with a veto of all regulations promulagated by federal agencies, have intensified debate on both the constitutional merits and administrative wisdom of the congressional veto process. These measures are exerting considerable effect, delaying the decisions of the agencies, reshaping the regulatory process, and increasing the direct congressional role in setting administrative agendas and substantive policies. The result is a transfer of administrative power to the more than 200 standing committees and subcommittees of the Congress-and, significantly, to their staffs. This transfer has served to impede the executive chain of command, to diminish the role of independent regulatory agencies as experts in their respective fields, to devalue judicial review of agency action, and to reduce the accountability of the affected agencies.     

当代中国内地的行政救济体制

当代中国内地的行政救济体制主要由行政机关救济、司法机关救济、权力机关救济构成,三种救济体制相互衔接、互为补充。但无论是行政机关救济,还是司法机关救济,抑或是权力机关救济,为行政相对人所能提供的救济都是极为有限的。而且,受我国政治体制和历史传统与观念的影响,行政救济体制的功能尚未完全发挥。因此,进一步增强救济机关的独立性,完善行政救济程序,拓宽行政救济的范围,是未来中国行政救济体制发展的必然趋势。     

论对抽象行政行为的司法监督

抽象行政行为是具体行政行为的直接依据。然而,理论界对它的法律监督问题不够。本力图从司法监督的角度分析对抽象行政行为司法监督的法理依据和现实需求,论述对抽象行政行为进行司法监督的可靠性,并认为实行司法监督的可行性途径是充实检察监督和完善审判监督。就此作提出了一些具体做法。     

The development and reform of court organization and administration

Over the past decade, court reform has become an integral part of the process of economic, political and administrative development. This article will examine the causes and consequences of court reform's new role. After reviewing the key national and international actors and examining the political and economic assumptions used to justify this initiative, the article will then argue that (1) the priority of judicial reform in the development agenda is linked not only to a theory of the role of courts and law in political and economic development, but also to the emergence of the field of judicial administration and court management, beginning in the United States and extending to a number of other countries; (2) the limitations built into the judicial administrative reforms implemented in OECD countries may be accentuated in the developing world; and (3) the very success of judicial administration as a field allows it to be used, in conflict with its fundamental tenets, to advance the political agendas of OECD countries as well as developing and transitional regimes. Copyright © 1999 John Wiley & Sons, Ltd.     

创新我国对抽象行政行为的司法审查制度

对抽象行政行为的司法审查，目前仅在我国行政诉讼中的一定范围内存在。应通过修改我国现行行政诉讼法，明确规定人民法院审理行政案件，可对行政机关提供的、除宪法和基本法律以外的、任何用来证明具体行政行为合法的法律件的合法性进行审查，以确定其能否作为证明具体行政行为合法的依据，在此基础上建立有中国特色的对抽象行政行为的司法审查制度。     

Integrated Impact Assessment as Environmental Policy: The New Zealand Experiment

The scope, complexity and interrelatedness of environmental problems presents a difficult challenge to policymakers. To date, public policies have been responsive largely to particular matters of public concern. They have typically been ad hoc, sectoral and segmental. Their administration has been charged to various agencies, each with its special mission. In consequence, governments have often acted to cross purposes; small results have often been ineffectual and, as often, unnecessarily expensive. Incremental innovation is seldom able to affect significantly the tendencies of the larger system of public policy and administration within which it is undertaken. Inasmuch as no country has had long experience with administration of environmental policy, a comparison of different approaches to environmental problems is useful. Direct transfers of method from one country to another may seldom be practicable, yet there may be lessons learned from the diverse experience of governments addressing similar problems. A comprehensive and radical institutional experiment in environmental policy has been initiated in the government of New Zealand. The New Zealand experiment may illuminate the effects of institutional structure on the implementation of policy. The relationships between constitutional principles, policy priorities and administrative structures have never been clear. The problems of coping with multiple environmental trends, their causes and their consequences justify efforts to find more effective methods of policymaking.     

THE STATUTORY CORPORATION—A NOTE ON THE THEORY OF AUTONOMY

Readers of this journal, especially those who watch developments affecting the machinery of government in Canberra, will no doubt have noticed the rehabilitation of the concept of statutory independence—a notion that, in some academic circles, had been virtually written off as having little or no relevance in the real world, where the general tendency has been towards an extension of government control and co-ordination of bureaucratic systems. Although it is much too early to evaluate, with suitable scholarly detachment, the significance of the administrative changes initiated since December, 1972, it seems a safe observation that for a small group of government agencies at least, the Labor Government has committed itself to the idea of independence. This much is clear from its declared aim of giving the Australian Broadcasting Commission more autonomy and the decision, recently announced, to reconstitute the Postmaster-General's Department into two separate statutory corporations.     

ADMINISTRATIVE REFORM IN NEW SOUTH WALES UNDER GOVERNOR DARLING

As a governor, Ralph Darling is remembered more for his authoritarian behaviour and harsh rule than for his administrative achievements. Only recently have historians shown much awareness of the important reforms which he made in the machinery of government. Yet, although attention has been drawn to this aspect of his work it has not been adequately examined. The tendency is still to concentrate on the colourful and controversial features of his regime, pushing to one side its more mundane developments. Admittedly, there are exceptions. J. W. Cell included an interesting section on Darling in British Colonial Administration in the Mid-Nineteenth Century , as did J. J. Eddy in Britain and the Australian Colonies. The first of these treatments is too brief, however, and the second concentrates on those aspects affected by the attempts of the British Treasury to exert more influence over colonial administration. Despite these books, the valuable thesis on the Colonial Secretary's Office by G. D. Richardson and the helpful prefaces that appear in the various guides to the records of government departments, prepared by the State Archives of New South Wales, much remains to be done. Most of the departments that existed under Darling still await detailed treatment both in themselves and in relation to the overall changes that were made between 1825 and 1831. As matters stand, there is a gap not only in what was a vital era in the administrative history of New South Wales, but also in Darling's own record. The present paper attempts to repair this omission.     

THE IDEA OF A PROMOTIONS APPEAL SYSTEM

“The Public Utility did not have a formal Appeals Board system in the form which had been adopted by a number of other government organisations in Australia. Over the years, however, the procedure had been established that senior employees who had been superseded could appeal to the Executive Committee.” “A striking feature of civil service mores is an apparently widely-held belief that special protection must be provided in public service not only against political influence in appointments, but also against what is called ‘internal patronage’. By this is meant protection against arbitrariness, nepotism, and favouritism, all alleged in some quarters to be inherently characteristic of the managerial and supervisory ranks of the public service. The present role of the Civil Service Commission as protector of the individual employee in questions of transfer, promotion and salary increments derives from this fear, and from the belief that intervention of an independent authority is necessary to ensure preferment on the basis of merit. “No convincing evidence has been found that any special factors distinguish the public service from other employment in this respect. Consequently, it cannot be concluded that civil servants need special protective machinery which employees outside the public service do not have. Moreover, there is an impressive array of evidence that the procedures and machinery created to prevent internal patronage have imposed upon the public service a very high cost in terms of delay, unfilled positions, poor selection of personnel, and generai frustration of responsible supervisors.”     

How to argue about the new public management

Hood and Jackson's (1991) distinction between administrative argument and administrative philosophy has been largely overlooked in writings on NPM. This seemingly subtle distinction flows from the more obvious one between “practical argument” and “social scientific explanation.” These terms refer to different scholarly practices. Practical reasoning is a highly-developed form of scholarship in law, public policy, and political theory. Explanation is a highly-developed scholarly activity in political science and related disciplines. The fact that practical argument and explanation are, in principle, complementary scholarly activities in practically-oriented fields such as public management is not a reason to overlook the distinction between them. If scholars writing on NPM made more of this distinction, it might prove easier for their readers to see precisely how social science explanations and practical arguments are interrelated. Discussion of how well claims have been supported would then be facilitated. Also, it would be easier for writers to decide how to engage the NPM literature. Not only would the issues be clearer, but it would also be easier to discuss the merits of alternative approaches to tackling them. If more weight is given to the distinction between practical argumentation and social scientific research by scholars of NPM, an urgent question is: how should the scholarly practice of practical argumentation be characterized?     

THE "NEW ADMINISTRATIVE LAW": SOME ASSUMPTIONS AND QUESTIONS

Abstract: Sweeping changes in administrative review legislation and procedures have occurred in Australian Federal government very quickly and with little debate. There have been several assumptions underlying the proposals for administrative law reform, including the notions that government has expanded greatly, that it has intruded into citizens' lives, that it is scarcely restrained by parliament, and that the specialist administrative tribunals established at various times are only partly effective. While these assumptions are all correct in certain respects, they do not necessarily support the demands for administrative law reform in the manner and to the extent that has generally been proposed. Closer examination of these assumptions suggests that comprehensive administrative review might itself lead to further expansion of government; that political decisions will have to be made about degrees of intrusion by government; that political avenues for redress of grievances should not be ignored, and could possibly be developed further; and that the need to prevent administrative errors is at least as great as the need to correct them after they have occurred. There is a good case for comprehensive administration review, but it needs to be examined more closely so that future problems can be anticipated and avoided.     

推进我国行政收费的法治化建设

近年来,行政收费问题一直受到社会的广泛关注。通过政府系统内部专项清理、整顿,我国在行政收费规范化方面确实取得了一些进展,但运用政策性文件约束行政收费效果有限,如何将行政收费纳入法治化轨道越来越受到重视。根据我国行政收费领域存在的实际问题及法治化的要求,首先必须贯彻法治行政原则,规范政府的行政收费行为;并通过制定行政收费法,严格限定行政收费的项目与标准;以及进一步完善行政收费监督体系,加强对行政收费的监管。     

TAX SHARING IN AUSTRALIA AND WEST GERMANY*

Abstract: Certain aspects of the new Australian tax sharing arrangements are analysed against the background of West German experiences. Emphasis is laid on Federal-State relations in outlining the basic characteristics of the German machinery and the Australian arrangements. Compared to the Australian situation, the tax sharing base in West Germany is much broader and has indeed contributed to the safeguarding of State autonomy to a large extent. On the other hand, the German States have no individual power to legislate on taxes or tax surcharges. Although tax sharing is a powerful instrument in mitigating financial imbalances in a federation, it tends to conflict with the idea of a centrally controlled stabilization and distribution policy. In Germany, tax sharing is complemented by a complex coordination machinery stabilizing joint decision making of the Federal government and the States. In areas such as demand management, financial planning and allocation policies there seems to be need for such complementary arrangements, since tax sharing alone cannot achieve sufficient coordination among the different administrative levels of a federation.     

公安机关的司法角色定位

我国的公安机关与其他国家的警察机构相比较 ,行政性质是十分典型的 ,过多的干预司法活动的现状 ,改革是必然的。我国的公安机关应将从事社会管理职能的行政执法警察与从事犯罪打击职能的司法活动警察严格划分开 ,这种划分包括机构设置上的单列和权力行使上的相对于政府部门的独立 ,以及受司法监督的独特性质。     

Federalism, the Bush Administration, and the Transformation of American Conservatism

Most recent Republican presidents have proposed signature federalisminitiatives intended to devolve power or sort out federal andstate functions. The Bush administration has not propoundedan explicit federalism policy of this sort, but its approachto federalism can be gleaned from analyzing presidential advocacyof legislation and constitutional amendments, fiscal policies,administrative actions, and judicial policies. What emergesfrom this analysis is an administration that has been surprisinglydismissive of federalism concerns and frequently an agent ofcentralization. In one sense, Bush is merely the latest in astring of presidents who have sacrificed federalism considerationsto specific policy goals when the two have come in conflict.However, the administration's behavior is somewhat surprising,given the president's background as a governor and the factthat he has been the first Republican president to enjoy Republicancontrol of Congress since 1954. Our explanation for the Bushapproach begins with the president's lack of any philosophicalcommitment to federalism and explores the changing status offederalism concerns within conservative ideology. Any explanationfor the Bush approach should account for this shifting politicaldynamic, which has seen Republicans in recent years become increasinglysupportive of exerting federal authority on behalf of theireconomic and social objectives, encouraging Democrats at timesto become more supportive of state authority.