论行政法领域的类推适用

成文法有其自身局限,其外延与内涵均无法避免缺陷。司法实践证明,行政法上的漏洞是客观存在的,以类推适用填补漏洞有其正当性。法律保留原则并未全面排斥行政法上的类推适用,基本权利保障原则更是要求行政法上的类推适用,行政法领域的类推适用不应绝对地否定。行政法上类推适用的范围受法律保留原则的拘束,在允许类推适用范围内,行政法领域的类推适用应具备其特定条件,并应从制度上予以规范和制约,以防止其滥用。

On Application of Analogy in Administrative Law

There must be own limitation for the statute law that its extension and content are unable to avoid defects.As proved by judicial practice,loopholes in administrative law are the objective reality and the application of analogy filling the loopholes is of its legitimacy.Application of analogy in administrative law is not only reserved by the legal reservation doctrine but also even required by the basic right protection principle so that the application of analogy in administrative law should not be absolutely denied.The application scope and specific conditions should be reserved by the legal reservation doctrine,with related regulations and constraints being written down to prevent abuse.