行政行为公定力质疑

行政行为公定力与现代行政法理念相悖,对我国无效行政行为防卫权制度的设立构成了障碍,影响了法治状态下权利与权力新型关系的构建。具体表现在:行政行为公定力缺乏实定法支持,有悖于公平正义理念,其理论依据缺乏合理性,其理论构建缺乏逻辑上的周延性。因此,行政行为公定力应退出行政行为效力领域,并确立以权利直接制约权力的独立价值取向。

Suspecting the determination of administrative act

The determination of administrative act is against modern notions of administrative law , prevents the defense of invalid administrative act from establishing and produces some influence on the formation of the new relationship between right and power under the rule of law. The shortcomings of the determination of administrative act are: it lacks the support of material law ; it is against the notions of justice and equality ;its rational is unreasonable; meanwhile, the formation of its theory is illogical .The conclusion is that the determination of administrative act should retreat from the validity realm of administrative act and we should keep the independent value of power controlled by right.