论表见代理在行政法领域之导入与适用

表见代理源于私法,一直为行政法学界所忽视。行政权行使过程中出现的众多现象与问题,非仅处理内部关系的委托所能解决。代理与委托相伴而生,唇齿相依。代理制度,特别是表见代理制度引入行政法,既能从理论上补充委托之不足,亦在实践中解决行政管理领域无权代理、越权代理情况下行政责任的承担问题,进而确定行政诉讼的被告,化解行政诉讼中存在的现实困难。

On Adoption and Application of Agency by Estoppel in Administrative Law

The theory of the agency by estoppel comes from the private law, but it is ignored by administrative law all the time. Numerous phenomena and questions appear in administration which cannot be solved only by entrustion which only deals with the inside relation. Agency was born with entrustion, and the two depends on each other as the lips and the teeth. If the agency and the agency by estoppel be both introduced into administrative law, they will make up the deficiencies of entrustion theoretically and solve the responsibility problems of agency without authority and agency exceeding one's authority existed in practice, confirming the defendant in administrative litigation.