【作者】 刘福元；

【导师】 崔卓兰；

【作者基本信息】 吉林大学 ， 宪法学与行政法学， 2010， 博士

【摘要】 行政自制是指行政主体自发地约束其所实施的行政行为,使其行政权在合法合理的范围内运行的一种自主行为,简单说,就是行政主体对自身违法或不当行为的自我控制,包括自我预防、自我发现、自我遏止、自我纠错等一系列下设机制。传统行政法学理论认为,对于行政权的控制主要依赖于外部主体,包括立法控制、司法控制以及公民和社会舆论监督等,但这种控权方式一方面难以适应行政权力日益扩展、行政理念逐渐更新、和谐社会发展目标深入人心等一系列社会趋势,另一方面其自身固有的不足之处使其无法达到充分完全的控权效果。因此,在构建社会主义和谐社会的发展目标下,若要促进政府与公民之间的和谐,形成互利互惠、共同发展的协调关系,就应当在肯定外部控制的同时将关注的焦点聚集于行使行政权的政府,从而探索以政府自身为控制主体的行政自制的功能、方法及实现途径。本文的主旨在于通过行政自制这一崭新的行政法学概念探索政府自我控制的理论与实践:在理论层面,着重分析行政自制的社会学、伦理学和传统文化上的基础理论支撑,并通过行政环境的考察论证其现实可能性;在实践层面,则通过裁量权内控制度、行政内部分权制度、行政惯例制度、绩效评估制度和内部监督制度等将行政自制从理论转化为现实,发挥其卓越的控权功效。更多还原

【Abstract】 Self-restraint in administration means the administrative subject controls its conduct by itself. It is a self-directed conduct which makes executive power exercise legally. In a few words, self-restraint in administration is the administrative subject control lawbreaking and misfeasance of itself, includes self-prevention, self-detection, self-inhibition and self-correction. Traditional administrative law theory thinks that the control to executive power must by outside, include control by legislation, justice and public opinion. But this opinion can not development trend of our society. And also this opinion can not control executive power effectually for its blind side. For this reason, we should research how to control executive power by outside and itself for building a harmonious socialist society. Attention is paid to build an elaborate system of self-restraint in administration. This system includes two parts about theory and practice. This paper will put self-restraint in administration into research of administrative law and complete the system of control executive power.On this basis, this paper has two parts. One is about theory of self-restraint in administration. The other is about practice of self-restraint in administration. Each part has five chapters.The first part of this paper is from the first chapter to the fifth chapter, which talks about theoretical basis of self-restraint in administration. In this part, attention is paid to prove self-restraint in administration is feasibility on theory and practice. Sociological analysis, ethnic’s analysis and traditional culture analysis of self-restraint in administration is keystone of this part. And through administrative surroundings analysis to inspect the probability of self-restraint in administration realized.The first chapter introduces the basic meaning of self-restraint in administration. A new academic concepts need to be made clear its meaning, and clarify the differences with other related concepts. So this chapter first made to define concept of self-restraint in administration. In the origin of the theory, the theory put forward mainly from the following two factors: (1) harmonious social development goals call for the extension of administrative law theory; (2) self-restraint in administration for weak in the external control system of administration. Concern on the concept of administrative in this chapter is the core of this paper.The second chapter study on the sociological basis for self-restraint in administration. In sociology, Cooley’s " looking-glass self " and Mead’s "I and me" are both the theoretical principle for the self-restraint in administration. Michaels argue that democracy in administration can not come true. But the self-restraint in administration executive regard this opinion is wrong. For social control, the self-restraint in administration is a kind of the social internal control which can play a unique effectiveness of the internal control.The third chapter study on the ethics basis for self-restraint in administration. This chapter first expounds important function of the ethics administrative in the administrative activities. Then the author argues that in ethics the deontology and teleology support for the self-restraint in administration and its validity in ethics can be fully proved. This paper argues that administrative ethics is not only a subjective state, but should also the relation between the administrative acts and the results of administrative staff. So the self-restraint in administration not only requires administrative staff to make high quality and effective administrative action, but also requires the administrative actions have good effect.The forth chapter study on the traditional culture for self-restraint in administration. The theories of ancient Chinese Confucianism and the modern concept of self-restraint in administration all arrive at the same end. We can say that the administrations in ancient China, from macroscopically political theories to microcosmic practice, are all elements to support the self-restraint in administration richly. This article argues that China has a deep cultural soil for the self-restraint in administration so it will come true easily. In other word the self-restraint in administration will to be accepted easily and have less resistance.The fifth chapter mainly talks about the possibility of the self-restraint in administration. With the establishment of the modern administrative goals, the government has take place many changed, these changes help to the self-restraint in administration to realize. In the administrative idea concept, benefit the people becomes the best important purpose of government. Government plays the service role in society. This asks the government to transfer of profits to the people and to offer services actively. On the administrative rights, the rule of law after 30 years, it has been restricted to within the framework of constitutional and legal, and has rational factors and the ability to perform good deeds. So the administrative rights can work under the self-restraint in administration system. On the administrative behavior, administrative decisions and legislation is diversified, administrative law enforcement trend showed softness. Under idea of self-restraint in administration, the government makes administrative laws and policies which reflect the diverse of all kinds of social subject. On the other hand, the government can avoid abuse and excess of administrative power through extensive use of permissive administrative behavior.The second part of this paper is from the sixth chapter to the tenth chapter, which talks about practice of self-restraint in administration. This part includes five headings: regime of discretion control, regime of decentralization of administration, regime of convention of administration, regime of achievements evaluation, regime of intramural control.The sixth chapter discusses on the internal control system of administrative discretion. How to control the discretion of administrative organ and civil servant is one of the core issues of administrative law. The self-restraint in administration has advantages in profession synchronism and endogenous character relative to the legislative and judicial control. These make administrative discretion clearer and more workable by hierarchical classification and quantification with certain standards. The seventh chapter is on decentralization of authority within administrative organ.As the chief realized mechanism of the self-restraint in administration, the decentralization of authority within administrative organ is the best measure to avoid the over-concentration of administrative power. It made by the government and administrative organ endogenous decentralization. Shenzhen bring forward a reform scheme named "the trichotomy on administrative power". It means an administrative system which is the administrative decision-making, implementation and oversight to be separated. The three separated functions supplement and constrain with each other. In practice, the administration should adhere to the principle of proportionality within the separation of powers, ensure that the power set is reasonable, and to ensure rational allocation of resources within the government.The eighth chapter is on the system of administrative case. The system of administrative case means that the government offers some typical cases for administration staff, and administrative staff must follow these cases when they meet same or similar situations. It is actually a way to restraint the administrative power. The system of administrative case aims to make the practice to restrain administrative power, improve administrative quality and administrative efficiency, and ultimately purposes are improved benefit of administrative counterpart and social welfare. This chapter introduced the system of administrative precedent, standard operating procedures and informal practices internal administrative rules of practice and other administrative means, and proposed specific ways of improvement.The ninth chapter is on evaluation of government performance system. Performance evaluation system is an institution which is used for evaluating the results and process of administrative acts in costs, benefits, efficiency, and openness, to guide practical works in future.The performance evaluation system is essentially a constraint to the administrative power. Because if government and its civil servants to laissez-faire exercise the administrative power, or even illegal or improper abuse of administrative power, it will obviously not get good performance reviews, and the low evaluation is consequences of abuse of administrative power, therefore, administrators must control the exercise of administrative power, improve administrative efficiency in order to offer better service to the administrative counterpart.The tenth chapter is on the internal supervision system. The internal supervision system means an oversight system inside the administrative organ, and the administrative organs with supervision function supervise other administrative authorities to self-correct. There are many kinds of diverse settings of administrative internal supervision in practice. This chapter selected administrative filing system, reports and inspection system and supervision union system to describe. This chapter also takes some suggestion to make the information transfer and information access better in the internal administrative supervision system.更多还原