行政执法权全面下移的组织法回应

虽然行政执法权全面下移工作已然铺开,但我国现有法律规范体系并未为其提供充足的规范基础,既有的行政组织结构及其相应规则也没有为镇街有效承接执法权做好充分准备。行政执法权全面下移依然承受着合法性与有效性的双重考问。以《行政处罚法》为框架的分析思路,并不能为消弭质疑提供有力支撑。行政执法权全面下移带来了镇街行政法身份、规模与组织形式、与区县人民政府职能部门的关系等方面的变化。这些变化意味着行政执法权全面下移属于执法权配置的结构性变迁,因而只能在组织法框架下探寻其解决之道。具体而言,应当通过《地方各级人民代表大会和地方各级人民政府组织法》的修改赋予镇街执法主体资格,在此基础上以行政法规、地方性法规等形式安排镇街机构设置与人员编制,理顺镇街执法与县(市、区)职能部门的关系,并为镇街执法提供必要的财政保障。

The Response of Organization Law to the Overall Downward Shift of Administrative Enforcement Power

Although the downward shift of administrative enforcement power has been fully carried out,the existing system of legal norms in China has not provided a sufficient standard basis for it,and the existing administrative organization structure and its corresponding rules have not been fully prepared for towns and sub-districts to effectively undertake the enforcement power.The downward shift of administrative enforcement power is still under the double questioning of legitimacy and validity,and the analysis based on the Administrative Punishment Law can not provide a strong support for eliminating the doubts.The overall downward shift of administrative enforcement power has brought about multiple changes in the status in administrative law,scale and organizational form of towns and sub-districts,as well as the relationship with the functional departments of counties and district people’s governments.These changes mean that the overall downward shift of administrative enforcement power belongs to the structural change of the allocation of enforcement power,so the solution can only be explored under the framework of organizational law.Specifically,China should amend Organization Law of the Local People’s Congresses and Local People’s Governments at Various Levels to grant streets and sub-districts qualification as law enforcement subjects,and on the basis,make arrangements on organ establishment and personnel quota of streets and sub-districts in the form of administrative regulations or local laws and regulations,make clear the relationship between the enforcement of streets and sub-districts and functions of counties(city,district)and provide necessary financial security for law enforcement by streets and sub-districts.