行政行为的重新定位

在大陆法系国家,行政行为一直是行政法学和行政法的核心概念,但对它的定位却大异其趣.当前,我国大陆对行政行为的定位亦不乏自相矛盾之处.在保留行政行为作为行政诉讼受案范围的功能概念的基础上,另外创设"行政处理"等概念来概括具有法律行为特征的具体行政活动,不失为一种可行的选择.事实上,对某个特定的行政行为而言,它通常既有法律行为的属性又有事实行为的特征,理应接受这两种行为元形式的检验.

Redefining the Administrative Act

There are a large variety of understandings on the concept of administrative act though it is essential in administrative law. In France, administrative act is defined from the perspective of pragmatism. In Japan, it is explored in an academic way to achieve the delicacy of the theory itself, while in Germany it is set on the double functions of practicality and learning. Self-contradictions on the definition and the scope of administrative act can be also seen in the academic circle in Mainland China. At the very beginning, the Administrativ e Procedure Law of the People's Republic of China uses the term of specific ad ministrative act and tries to solve the problem of "Scope of Accepting Cases" by this standard. (Article 2: If a citizen, a legal person or any other organization considers that his or its lawful rights and interests have been infringed upon by a specific administrative act of an administrative organ or its personnel, he or it shall have the right to bring a suit before a people's court in accordance with this Law.) Following this, we introduce in academic studies the German legal action theory and make it the keynote of our administrative act. As a result, the term, administrative act, bears dual functions but it cannot endure such a burden. Is it better to restore the authentic character of the administrative act as a form of legal action, or shall we keep its basic function as a basis to exercise jurisdiction? That is the kernel of the discussion in the article. What deserves our attention is that, nowadays, in such countries as Germany, administrative act has acquired a new definition. The "dissension in public law " has taken the place of the "administrative act" so as to bring the administrative lawsuits into play. Meanwhile, the administrative act has been seen as a unilateral legal act. As a matter of fact, legal action and factual action are the two basic forms of the active conception. When we are talking about a certain specific administrative act, we should take measures in the two aspects. This issue merits our fu rther consideration.