试论行政立法与人权保障--兼以行政许可为例分析

行政立法应当以保障和不侵犯人权来证成自己道义上的正当性.为了保障人权,必须对行政立法的权限和目标进行控制.行政立法不得限制基本人权,对非基本人权的限制也要程度适当.行政立法必须制约行政权力、保障行政相对人权利.在行政许可设定上只有坚持法律保留原则、依法设定原则、许可设定公开原则、公众参与原则,限制行政许可设定的范围,贯彻行政立法的"无为"精神和有限政府的理念,才有利于保障公民的权利与自由.

Administrative Legislation and Protection of Human Rights

The moral legitimacy of administrative legislation should be proved by giving protection without infringing upon human rights. In order to protect human rights, the authority and the purpose of administrative legislation must be controlled in many ways including no restraints for the basic human rights, proper restraints for non-basic human rights, the restraints for administrative power and protection of administrative counterpart. As far as the creation of administrative license is concerned, it is beneficial to the protection of citizens' rights and freedom to uphold the following principles like legal reservation, creation according to law, open licensed creation and public participation. In addition, the range of the administrative license should be restricted and the concept of limited government should be implemented as well.