摘要
行政行为效力判断是对意定主义模式下行政行为产生的"相当于法律的效力"是否认可的问题。合法性只是效力判断的一个基准而非全部基准,是进行判断的重要条件而非充分条件。这一点决定了效力判断不可能是一个在合法性与效力之间进行简单比照的过程,而必须综合考虑行为与结果并存的二元化对象基准、主客观对立统一的要素基准以及法、理、情互补的逻辑基准,在此基础上恰当地运用瑕疵衡量、利害衡量、价值衡量等规则进行分析判断。
The judgment of the validity of an administrative act is whether to acknowledge it can has the effect ＂tantamount to law＂. Legitimacy is only one of the basic standards to make this judgment. Although legitimacy is an important condition for the judgment, it is not sufficient in itself. Therefore, the judgmental process can not be equated to a simple inference process from legitimacy to validity. The judgment should bases on a comprehend consideration of several standards and a comprehend application of several rules. The subject matter of the judgment is dualistic, i. e. , act and result. The basic standard of act orients to rule of law in form and aims to realize general prevention, while the standard of result orients to rule of law in essence and aims to realize administrative purposes and a due administrative order. The judgment should also consider several subjective and objective requirements. Objective requirements include mainly four aspects, that is, whether the administrative act has some defects in its authority, its procedure, its form and its content. According to the German well--accepted theory, subjective requirements include three elements, that is, will of conduct, will of expression and will of effect. As to the logical standards of this judgment, whether the administrative act accords with law, purpose and moral should be considered. When it is ambiguous whether an act accords wi law or not, purpose and moral standards can make it up. And even it is certain that an act accor with law or not, purpose and moral standards can also correct such conclusion. In the course of this judgment, there are also several rules should be complied with. In general, the validity of an administrative act can be judged by its legitimacy. When it is difficult to judge whether the act is legitimate or not, its validity can be judged according to administrative purposes and ethics and moral. If a legitimate act deviates from the administrative purpose or moral rules, the purposes and moral standards should prefer. In the course of judgment, the rules of balancing defects, balancing interests and balancing values should also be applied.
出处
《法学研究》
CSSCI
北大核心
2009年第5期86-99,共14页
Chinese Journal of Law
关键词
行政行为
效力判断基准
效力判断规则
administrative act, validity, basic standard of judgment, judgment rule
