依法律行政原理的移植与嬗变

依法律行政,旨在藉由法律的合理性控制行政的恣意,并获得法的安定性和民主性,它是近代形式法治国家的产物,是自由主义与民主主义的结合。德国依法律行政原理经由奥托·迈耶的提炼基本定型,经由美浓部达吉等人传至日本,并影响了我国早期的行政法学。在新中国,依法行政逐渐得到强调。这种转变既有行政立法高涨的现实影响,也有方法论上的原因,但更多缘于全国人大—行政机关—司法机关的权力格局。从全国人大与国务院的宪法关系来看,应当重新确立依法律行政原理,并从行政诉讼上为依法律行政提供保障机制,同时摒弃依法行政中的某些错误观念,以确保法治国家的真正实现。

Transplantation and Transmutation of the Doctrine of Administration by Congress' Laws in China

The doctrine of administration by congress'' laws under the system of separation of power aims to control administrative arbitrariness through the rationality of congress'' laws so as to achieving legal stability and administrative democracy. The doctrine is the product of modern Rechtstaat and the combination of libertarianism and democratism. It was shaped by Otto Mayer in Germany, transplanted into Japan by Minobe Tatsukichi, and exerted a direct influence on the early administrative law in China. Although the doctrine was accepted by both the constitution and the academia of the Republic of China, the principle of administration by law has emerged in China in the 1930s. After 1949, administration by law was emphasized while administration by congress'' laws has been gradually forgotten. This transmutation was caused not only by growingly practical influence of administrative legislation and by methodological factors, but, more importantly, also by the changed structure of state power. From the point of view of the constitutional relationship between the National People''s Congress and the State Council, the doctrine of administration by congress'' laws should be re-established and guaranteed by the system of administrative litigation while at the same time some misconceptions about administration by law should be rejected, so as ensure the true realization of Rechtstaat.