【作者】 唐杰英；

【导师】 殷啸虎；

【作者基本信息】 华东政法学院 ， 宪法与行政法学， 2002， 硕士

【摘要】 大陆法系法学的最大特点是以概念为中心,并在概念的基础上构筑起庞大而精深的法学体系。因此,作为行政法学的核心概念——19世纪行政法理论的创造——行政行为,长久来一直是行政法学研究的中心。然而,对行政行为的理解在学术上至今存在着大量的分歧。本文通过对行政行为概念历史沿革的探讨,以及对行政行为构成要素的讨论,指出国内行政法学在很大程度上承继了大陆法诸国行政行为学说的基本理论,虽然其中亦存在一些差异;在国内行政法中,对行政行为概念的理解,存在着最广义、广义、狭义和最狭义四种学说,其中“狭义说”为通说,即行政行为是“行政主体行使行政职权而做出的发生法律效果的行为”;对行政行为的构成要素,则存在着三要素、四要素和五要素等不同见解,通说认为行政行为由主体要素、职权要素和法律要素构成。本文虽然赞同通说对行政行为概念所持的见解,同时也主张行政行为由主体、职权与法律三要素构成。但本文又进一步认为:学界对行政行为构成诸要素的讨论中,其中,主体与职权要素的讨论与“分权学说”一脉相承;法律要素指的是“发生行政法上的效果”,包括“对内与对外效果”而不含“可诉性效果”;意思表示要素在行政法学不断发展与渐趋成熟的现今时代,不应<WP=3>再成为行政行为的核心概念,虽然本文仍然肯定这一民法学理论对行政法学理论所存在的借鉴价值;此外,对合法要素、形式要素、相对人要素与客体要素,本文亦简要指明了不予赞同的理由。更多还原

【Abstract】 The science of law related with continental law system is distinctively featured by revolving around concepts and building a wide-ranging and profound system of the science of law upon the concepts. Therefore, as the core concept in the science of administrative law, the administrative act, the creation of the theory of administrative law in the 19th century, has been the focus of the research done by the science of administrative law for a long time. Nonetheless, there has existed much controversy over the academic comprehension of administrative act.Following the probe into the origin of the concept of administrative act as well as the discussion of its componential elements, this paper points out that although there is still some difference, domestic administrative law, to a great extent, inherits basic theories of the doctrine of administrative act adopted by countries of continental law. As the concept of administrative law in domestic administrative law, four doctrines are advanced viewing the comprehension of the concept of administrative act in the widest sense, wide sense, marrow sense and the narrowest sense, among which the doctrine in the narrowest sense is the common one, which interprets administrative act as the act with legal effect <WP=5>conducted by administrative subject when exercising administrative power. As for the ideas, Administrative act is considered to be composed of three, four or five elements in different ideas. The common doctrine treats it as the integration of the elements of subject, power and law.In accordance with the common doctrine towards the concept of administrative act and its componential elements, this paper further reveals that in the academic discussion of the componential elements of administrative act, the discussion of the elements of subject and power can be traced to the same origin with “the theory of power separation”. The element of law refer to “the effect of administrative law”, including “the effect of both inside and outside administration” but excluding “the effect of administrative suit law”. Although this paper still confirms the value of the theory about the science of civil law, which is taken by the theory of the science administrative law for reference, the element of should no longer function as the core concept of administrative act in contemporary times when the science of administrative law keeps developing to become perfect. Besides, the paper reveals reasons for the disapproval of other elements, that is, the elements of legality, form and other-party, in a brief way.更多还原