【作者】 孙德超；

【导师】 李靖；

【作者基本信息】 吉林大学 ， 行政管理， 2005， 硕士

【摘要】 本文从理论和现实两个层面探讨了行政程序对行政自由裁量权滥用的控制。 本文分为四个部分: 第一部分,主要对行政自由裁量权和行政程序的含义进行清晰的界定。文章分析了行政自由裁量权的产生、含义和特点,并结合行政自由裁量权探讨了行政程序的产生、含义和原则。 第二部分,主要介绍行政自由裁量权的滥用及其引起的负效应。文章分析了行政自由裁量权存在的社会基础、滥用及滥用引起的负效应。文章指出:行政自由裁量权的合理存在并不意味着这种权力能被合理的利用,在产生积极影响的同时,也可能走向授权的反面并造成消极后果。 第三部分,主要在理论层面上分析行政程序能够实现对行政自由裁量权滥用的有效控制。文章探讨了行政程序控制行政自由裁量权滥用的功能体现:限制随意行政,保护行政相对人的权利;实现行政公正与行政效率的协调。 第四部分,主要在现实层面上分析了行政程序对行政自由裁量权滥用的控制,即行政程序控权体系的构建。在这一体系中,行政程序立法足核心内容;重视行政程序建设和强调行政程序的正当性是前提;建设高素质行政执法队伍和加强内外监督是关键;行政程序耗费的成本与其保护的行政相对人权利的关系、程序正义与形式主义的关系、程序正义与实体正义的关系是难题,也是完善方向。更多还原

【Abstract】 The power of administrative freedom is the core of the administrative power, the administrative procedure emerging in the aspect of controlling the abuse of the power of administrative freedom. This paper combining with our country’s reality, through the analysis of the abuse of the power of administrative freedom and its reverse influence, approaches the control of the administrative procedure on the abuse of the power of administrative freedom.This paper has four parts:The first part the analyses of the concepts of the power of administrative freedom and the administrative procedureThe power of administrative freedom is the result of the development of the administrative legality. It indicates that the power of the administrative subject (the organization and individual having administrative authority according to laws, executing administrative behaviors on one’s own and bearing legal effects independently) , in the fields of laws and regulations authorizing clearly or tacitly consenting, on the basis of legislative aims, spirits, fair and reasonable principles, judges, chooses and decides the methods and contents of the administrative behaviors independently. It has the traits of publicity, relativity, subjectivity, compelling and specialization.The administrative procedure in this paper refers in particular to modern administrative procedure which takes controlling power for aim. It is the result of the basic human rights theory’s flourishing and the emergence of the power of administrative freedom. With regard to the implication of the administrative procedure, each country hasn’t formed one accepted concept. The writer firstly differs between the administrative procedure and the administrative lawsuit procedure, and then clarifies the concept of procedure, finally agrees to the standpoint of Hao cai Luo and Song nian Ying, "administrative procedure indicates the ways, the methods, the sequences and the deadlines of administrative behaviors." The administrative procedure not only represents stationary rules, but also represents dynamic behaviorsequence. The administrative procedure is the procedure of dealing with administrative behavior, whose factors include the ways, the methods, the sequences and the deadlines. For making this concept more definitely, the writer indicates the administrative procedure in this paper indicates mainly broad and legal administrative procedure through the classification. The principles of the administrative procedure is the premise of developing functions, including the open principle, the just principle, the participant principle, the efficient principle and the principle of the behaviors to no avail when violating procedures.The second part the abuse of the power of administrative freedom and its reverse influenceThe power of administrative freedom suits the need of continual and expandable administrative power, adapts the features of administration and the demands of the principle of administrative efficiency, and compensates the limitations of legality.However, the rational existence of the power of administrative freedom doesn’t mean this power can be applied rationally. In bringing about positive effects, it also may reach the reversal of authorizing and result in passive consequence. This displays: improper consideration,, which means considering unrelated actors or not considering related actors; making expandable or limited explanation to elastic law articles; again and again, which means treating distinguishably same things or treating equally different things; delaying intentionally, which means delaying intentionally if laws and regulations don’t have time formulation or not differing major from minor if having no time formulation.The abuse of the power of administrative freedom makes the legal conception of the administrative subject light, encourages the styles of bureaucracy and the thoughts of privilege, results in more and more degeneration which is legal in shape, and forms harmful atmosphere of sociality.The third part the theoretical approaching on the control of the administrative procedure to the abuse of the power of administrative freedom.The abuse of the power of administrative freedom is its regressive moving ot transgressing moving, which means it doesn’t move according to the ways, the methods and the measures put up in advance. This concentrates on casual administration, whose results are encroaching on legal rights of the administrative counterpart, violating administrative justice and in fact cutting down administrative efficiency. The administrative procedure limits casual administration and protects rights of the administrative counterpart, which shows: the administrative procedure displays all process of administrative behaviors openly, the administrative procedure provides the administrative subject with more procedural obligation and the administrative counterpart with more procedural rights, the administrative procedure has correcting effects on administrative substantial standard, the administrative procedure realizes the restriction of the rights of the administrative counterpart on administrative power through participancy of the administrative counterpart; The administrative procedure can realize the coordination between administrative justice and administrative efficiency, which shows: the administrative procedure formulates the behaviors of the administrative subject and the administrative counterpart, the design of the administrative procedure reflects the integrality of administrative justice and administrative efficiency, the administrative procedure realizes the coordination of administrative justice and administrative efficiency through participancy.The forth part the practical analysis on the control of administrative procedure to the abuse of the power of administrative freedom — the system’s structuring of administrative procedure controlling powerThrough the third part’s analysis of the administrative procedure controlling the abuse of the power of administrative freedom, we are aware of the administrative procedure is an effective channel in controlling the abuse of the power of administrative freedom. Then, how does the administrative procedure develop this control in our practical lives? The writer believes this is a systematic engineering. We regards it the system of the administrative procedure controlling power. Structuring this system includes bellowing aspects specially:The core of the system’s structuring of the administrative procedure controlling power is the legislation of the administrative procedure. The writer believes our country’s law systems of administrative procedure have formed basically, the basic principles and spirits of the administrative procedure have established in legislation, administrative practice and even judicial examination through the legislative efforts in the end of the twentieth century. However, for the legislation of administrative procedure, the main defect embodies that we highlight particular procedure and look down upon centralized procedure. So, the writer advises choosing the legislative models including both centralized legislation and single legislation.The premise of the system’s structuring of the administrative procedure controlling power include highlighting the structuring of administrative procedure and emphasizing administrative procedure’s due characteristic. The emergence of the conception of "highlighting substance and neglecting procedure" has its deep and historic source, so we need setting up the legalistic conception of procedure, among which a long and terrible assignment is improving vast masses’ legalistic conception of procedures; In view of traditional malpractices, advocating the view of "the justice of procedure precedes the justice of substance" brings about logic crack in the process of taking for granted, that is the neglect of due process. The general administrative procedure frequently having both right and wrong effects, we should put our studying emphasis and concerning focus on due administrative procedure.The key of the system’s structuring of the administrative procedure controlling power include building a high-qualified administrative troop of enforcing laws and strengthening internal and external supervision of administrative subject’s applying admimstrative procedure. The employ and choice of administrative personnel of enforcing laws should insist on the principle including both morality and ability, especially highlighting the importance of morality. To existing personnel, we should combine training with examining. We should perfect the styles of resignation and dismissal, which makes the personnel both in and out; We should stress the internal supervision of admimstrative supervised mechanism and reconsidering更多还原