【作者】 徐伟；

【导师】 刘远征；

【作者基本信息】 中国海洋大学 ， 法律， 2011， 硕士

【摘要】 行政指导缘起于二战后的日本,之后越来越多的为各个国家所应用,一般是指行政机关通过指示、教导和引导的方式达到行政管理目的的一种手段。在我国,行政指导依然处于萌芽状态,只是在部分立法中对其概念偶有提及。近年来,一些地方大胆的开展相关实践摸索,取得一些经验,但是同时也提出了一系列的问题。其中最为焦点的是我国将行政指导定位于无法律强制力、无法律后果的抽象行政行为,因此令其不具有可诉性,从而无法保护因不当行政指导受到损害的行政相对人利益。针对这一核心问题,对比日本、德国和美国三国有关行政指导的立法情况和对于行政指导的性质,可以发现我国行政指导实践所存在的最突出问题是对其法律属性认定不清;缺乏法律依据、程序控制和救济途径的局面,因此亟需构建相应制度。在制度构建上,首先,从考察具体类型出发,我国行政指导的法律属性应当进行重新定位。在我国行政指导行为应当被视为一种部分情况下有事实强制力和法律后果的具体行政行为。其次,在前述定性基础上可以重新对我国行政指导进行立法定义,界定其形式,设计其原则。再次,我国行政指导应遵循的必要程序包括信息公开程序、公众参与程序、风险评估程序和实施评价程序。第四,也是最为重要的,在对行政指导法律性质重新界定的基础上,行政指导制度构建的核心是对不当行政指导行为的救济途径尤其是诉讼途径。抽象行政指导行为虽是不可诉的,但是对于具体的有瑕疵的行政指导行为应当规定其是可诉的,在其中又分为几种情况,包括法律明确规定由行政主体实施的、行政主体依照组织法的规定在其职权或者管辖范围内实施的两种情况;给相对人造成损害的,应当予以赔偿,举证责任可参考其它行政诉讼。最后,具体落实在立法和相关制度拟定之中,第一要在行政诉讼法和行政复议法中加入对相对人的救济途径,第二是在今后制定《行政程序法》中进行专章规定,第三是由国务院出台专门的文件政策加以指导规范。更多还原

【Abstract】 Administrative guidance system is derived from Japanese after the Second War and later accepted by more and more countries. Generally, it refers to the methods through direction, instruction and guidance to achieve the purpose of administrative management by the administrative organizations. In china, administrative guidance system is still in original state with little legislation concerning on it. In recent years, as the administrative guidance has the feature of flexibility, softness and so on than traditional administrative methods, some local governments carried out relevant practice exploration and gained some experience. While, there still exist a series of questions and the most important is that the system and theory of administrative guidance is taken from the western countries who define it as the abstract administrative act with no legal compulsion and legal effect, so administrative guidance has no justifiability and it will leave the administrative counterparts from the protection when their rights and interests have been violated by the unsuitable administrative guidance.Based on this core question above and compared with the legislation of administrative guidance among Japanese, Germany and American, it is concluded that they define the administrative guidance as the no binding administrative action which purpose is to achieve the goal of strengthening administrative management and being complied with the administrative counterpart, its format is unusually showed as guidance. But the three countries have different basis of history, economics and freedom and not regarded administrative guidance as the complete abstract administrative act or establish relevant relief system. In contrast, our administrative guidance is still in problems which lack the independent analysis of national conditions, theoretical support, clear definition of legal nature, legislative authority, program control and relief way.From the practice that the documents of the administrative department usually remove the principle of good faith which imposes restrictions on these departments from the principle of administrative guidance, it is concluded that the interpretation of Administrative Procedure Law getting rid of the administrative guidance is contradictory with the practical development of it. And from the view of operation, the category of administrative guidance in China contains not only the specific administrative act but also the act with compelling force and legal effect, so the administrative guidance in China should be understood from the following three aspects: the legal government act, the procedure act based on administrative resources and the administrative act with legal effect.In conclusion, the legal definition of administrative guidance should be:“in the scope of the laws and regulations or legitimate authority and by the procedures defined by laws, the administrative subjects conduct the guiding administrative act on the management counterparts in order to achieve the goals of government”. The guiding administrative act should consist of advisement, guidance, admonishment, assistance, demonstrating and public notice. And it should contain the principles of Statutory Authority, Voluntaries, Trust Protection, Administrative Openness, Legal Procedure, and Obligation Relief.As to the procedure of administrative guidance, it should include Information Disclosure Procedure, Public Participation Procedure, Risk Assessment Procedure and Operation Evaluation Procedure. What’s more, it should be regulated that the administrative guidance with flaws can be sued and if these acts cause damages to the counterparts, compensation should be paid for them and the burden of proof can refer to some other administrative lawsuits.In the implement of legislation and regime construction, firstly, the relief to the counterpart should be regulated in the Administrative Procedure Law and Administrative Review Law; secondly, it should be regulated as an independent chapter in the future Administrative Procedure Law; lastly, special policy documents by the State Council should make some relevant regulations and guidance.更多还原