行政许可的性质探讨

行政许可制度在中西均有着悠久的历史 ,社会需要是决定其产生与发展的社会基础。尽管我国行政机关很早就开始采用行政许可手段管理社会经济事务 ,但对其性质一直没有统一的认识。当前流行的观点分别把行政许可定性为行政机关对相对人某种权利的赋予或对相对人的一般禁止行为的解除 ,抑或是前二者的折衷。这些定性均有失妥当 ,不利于我国行政许可制度的法制化。与此相比较 ,将行政许可定性为行政机关对相对人行为能力的审查 ,更有其理论与实践上的合理性

An Inquiry into the Nature of Administrative Licence

Administrative licence has a long history in both China and foreign countries, because social demand is the soical base of its appearance and development. Though the administrative organs in China began to manage public and economic affairs by means of administrative licence long ago, there is no consensus of concept as to its nature. In the current concept, it refers to that an administrative organ gives some rights to private party in administrative process, or that an administrative organ lifts general bans on behavior from private party in administrative process, even refers to a compromise between them. Those definitions of the administrative licence are not proper, which will do harm to its legalization. When compared with them, it is more reasonable, both theoretically and practically, to describe the administrative licence as an administrative organ's examination into a private party's abillity of behavior.