行政行为公定力与妨害公务——兼论公定力理论研究之发展进路

几近二十年发展,行政行为公定力理论,始终未脱离国内行政法学者视野。然对于这个舶来品,学界一直有两种倾向:一是在理论移植和自构的关系上倚重移植,二是在原理和技术的关系上偏于原理叙述。其实,该理论不仅可以得到重解,在价值规范上与民主政制达成契合,而且,其主张的“违抗具有假定效力的行政行为可能构成妨害公务”的观点,也可以在技术规范上得到刑法学妨害公务行为构成要件学说的支持。因此,如何摆脱对移植的倚重、对技术规范的轻忽,是该理论获得新生的必由之路,甚至也是决定该理论是否应当摈弃之前需要努力的方向。

The Public Deciding Force of Administrative Action and Impairment of Public Affairs

The theory for presumed validity of administrative action has never deviated from the administrative law scholars' vision field during the past twenty years' development. However, as regards this imported theory, there have always been two trends among the academics. One is reliance on transplantation in terms of the relationship between transplantation and self-construction. The other is emphasis on principles in terms of the relationship between principles and techniques. Actually, on the value norm, this theory could be renarrated to fit the democratic polity. On the technical norm, its claim that to defy the administrative action with presumed validity may commit the interference with public function could also be supported by the element theory of the action of interference with public function in the criminal law. Therefore, to get rid of the reliance on transplantation and the negligence of technical norms is not only an inevitable road for the rebirth of this theory, but also a direction of further efforts even if we decide to abandon this theory.