【作者】 曾祥华；

【导师】 杨海坤；

【作者基本信息】 苏州大学 ， 宪法学与行政法学， 2005， 博士

【摘要】 本文将实证分析与价值分析相结合,侧重价值分析,兼以比较分析、辨证分析、历史分析、语义分析、个案分析等方法来研究行政立法的正当性,主要任务是解决如何判断行政立法的正当性即判断行政立法正当性的标准是什么的问题。因此它分为三大部分,即行政立法正当性的整体评价、判断行政立法正当性具体标准以及如何保证行政立法的正当性,而核心部分在于判断行政立法正当性的标准,即行政立法的形式正当性、行政立法的程序正当性和行政立法的实质正当性。 第一章主要探讨行政立法的正当性的基本问题和总体评价。本章首先对行政立法的概念和性质进行界定,作为全文的基础。笔者对行政立法做最狭义的理解并对行政立法概念的外延以排除法进行界定,对行政立法的性质从研究方法的角度进行探讨,主要阐明行政立法具有行政行为和立法行为的双重性质,同时对授权立法和职权立法以及行政立法的效力表明自己的观点。其次,对法的正当性的概念进行阐释,主要从形式正当性、程序正当性和实质正当性三个方面理解法的正当性的含义,同时对三者之间的关系进行探讨。最后,对本文的主题进行概述,通过对行政立法的必要性、行政立法的弊端和行政立法的正当化的探讨,概括和导入本文所要研究的核心内容。 第二章探讨行政立法的形式正当性问题。笔者以为法的形式正当性主要包括立法权来源的正当性、不能越权立法和保持法律体系的一致性三个方面的具体要求,相应地行政立法权来源的正当性、法律优先和法律保留、授权立法的法律冲突及其解决途径就成了本章的三个子问题。本文首先对授权立法权来源的理论进行评述,表明自己的立场,在明确我国存在行政职权立法权的基础上论证了职权立法权缺乏正当性并且应当取消的观点。其次,对法律优先、“根据”和“不抵触”、法律保留等原则进行阐述,并且拟对各原则表明自己的理解,论证了宪法基本权利对行政的直接效力和法律保留中的“法律”不包括行政立法等观点。最后,对授权立法所引起的法律冲突的原因进行了分析以及运用规范授权、裁决、法律位阶等解决其冲突的途径进行探讨。 第三章探讨行政立法的程序正当性,主要讨论正当程序的两个原则公众参与原则和公开以及行政立法程序的核心制度听证制度。本章阐明公众参与不仅是行政立法民主化的重要途径,而且是行政立法正当性的基础,在明确公众参与原则的实质要求和比较研究的基础上,指出我更多还原

【Abstract】 In this article, I wan to present a research on the legitimacy of administrative legislation by positive analysis and value analysis, especially the latter, as well as comparative analysis, dialectic analysis, historic analysis, semantic analysis and case analysis. This article studies mainly on the standards of the legitimacy of administrative legislation or how to judge the legitimacy of administrative legislation. So it includes three parts, i.e. the general judgment of the legitimacy of administrative legislation, the concrete standards of the legitimacy of administrative legislation and how to ensure the legitimacy of administrative legislation. And the hard core of this article lies in the standards of the legitimacy of administrative legislation, i.e. the formal legitimacy, the procedural legitimacy and the substantial legitimacy of administrative legislation.Chapter 1 discusses the basic issues and the general judgment on the legitimacy of administrative legislation. First it defines the concept of administrative legislation and probes into its character. It defines the concept in the narrowest sense and the extension with elimination. It discusses the character of administrative legislation in the view of research methods. Administrative legislation has the dual characters of administration and legislation. Secondly it explains the concept of legitimacy of law in the three facets of formal legitimacy, the procedural legitimacy and the substantial legitimacy and discusses the relationship among them. Thirdly it probes into the necessity, the evil and the legitimation of administrative legislation to give an introduction to the whole article.Chapter 2 is about formal legitimacy. The legitimacy of law involves in the source of legislative power, no exceeding one’s authority and consistency in the whole system of law and accordingly the legitimacy of administrative legislation includes that of the source of the power of administrative legislation, law superiority and law reservation and the solution of conflicts of law cause by delegated legislation. First I present a new explanation on the theories of delegated legislation and take for that the power of administrative legislation by authority without delegation in China should be abolished for lack of legitimacy. Secondly I discuss the doctrines of law superiority, "according to" , "no conflict to" and law reservation and present a new explanation on them. I take for that the constitutional fundamental rights should have direct effects to administrative power and the "law" in law reservation excludes administrative legislation. Thirdly 1 probe into the conflicts caused byadministrative legislation and their solutions.Chapter 3 discusses the procedural legitimacy of administrative legislation. It mainly inquires into the principles of public participation and open legislation and the system of hearing in administrative legislation. Public participation not only democratizes administrative legislation but also lays its foundation of legitimacy. After explaining the essential requests of public participation and a comparative research, it points out the shortage in public participation in Chinese administrative legislation and puts forward some suggestions on how to enhance it. It also lays emphasis on the importance of open legislation and comments on the state of open legislation in China. It takes for that hearing is the hardcore procedure in administrative legislation. It also brings forward some propositions on how to improve hearing and points out the difficulties in it.The fourth chapter is the most important part in this article. It probes into the substantial legitimacy of administrative legislation. The substantial legitimacy shows both the value of administrative legislation and the main standards for judging the legitimacy of administrative legislation. At first it discusses the moral legitimacy of administrative legislation, i.e. human rights. Human rights are the logical starting points of administrative law, the source and aim of administrative power. Administrative legislation can’t limit the fundamental human rights and should confines the non-fundamental rights in a proper degree. It can’t limit the citizens’ rights and add the citizens’ obligations without delegation by law and should control the administrative power to protect human rights. Human rights are the hardcore values in administrative legislation. Next, it inquires into the social legitimacy of administrative legislation, i.e. balance of interests. It differs interests balancing in legislation from that in trial at first. And then it tries to present the standards of interests balancing such as taking into account the elements that should be considered and eliminating the elements that should not be considered, paying respect to all the interests, stage of interests etc. Thirdly it presents a research on the economic legitimacy of administrative legislation, i.e. analysis on costs and benefits. It is very important to improve the benefits of administrative legislation, for all the sources are more valuable nowadays. At last it discusses the ecological legitimacy of administrative legislation, i.e. the harmonious relationship between the human beings and nature. It is the very duty of the government to prevent from pollution, protect the entironment and keep sustainable development, for it relates to the future of the whole human beings.The last chapter studies how to ensure the legitimacy of administrative legislation. It would be only prate without effective ensuring mechanism, so we consider the legislative control and the judicial control of administrative legislation as the indispensable parts of the issue. The people’s congress should build up a special organization to strengthen the supervision on administrativelegislation and therefore the Law of Legislation should be amended. It is the chokepoint of the rule by law in China that lacks the judicial review or supervision on violation of the constitution. We should build up the special courts to supervise the violation of the constitution, enhance the independence of the judicial power and reinforce the judicial review.This article tries to innovate the theory and the system of administrative legislation and the supervision on it. It also wishes to be helpful to promote the legitimacy of administrative legislation in China.更多还原