我国行政奖励制度的法治化研究

发布时间：2018-05-24 10:44

本文选题：行政奖励制度 + 行政诉讼　；参考：《山东大学》2017年硕士论文

【摘要】：在现代法治社会,行政奖励制度作为一种管理手段,也发挥着越来越重要的作用。伴随着全民教育水平的提高和人权意识的增强,公民的维权意识也在提高。与以往的强制性、制裁性的手段相比,之前的管理者也开始以服务者的意识来弱化行政行为的强制性,以诱导、鼓励方式为目标,来提高被管理者的积极主动性,从而提高行政行为的效率和效果,行政奖励制度体现了我国法治以人为本的理念,不仅有利于行政目标的实现,而且使公民的地位得到提高和尊重。尽管我国部分法律法规规章早已对行政奖励有所提及,也有很多学者对其相关内容进行了探讨,但笔者认为在没有相关案例分析,只是在理论上进行分析只能算是纸上谈兵。只有在依据于司法实践时,理论才能绽放本身的生命力。曾经有学者谈到,某一行业的法制,尤其是立法的发展状况往往是晚于司法的。这种错位在一定程度内是比较合理的,一是立法者不可能凭空猜测在法律实施过程中可能会遇到的问题,所以只有案件的发生把越来越多的问题呈现在立法者面前时,这一问题才会受到重视,相应的立法才会出台;二是只有将法律放在一种极端的状况下才能挖掘其深层含义,才会具有生命力。毋庸置疑,此种错位给司法带来了很大的困扰,我国没有行政奖励方面的专门立法,最初甚至相关条文都很少,致使法院判决的说理部分看起来如此蹩脚。近几年频频出现的关于行政奖励的案例表明,由于《行政奖励法》尚未出台,致使行政奖励的具体实践中问题不断,如行政奖励制度立法缺失、行政机关自由裁量权滥用;行政机关之间职责不明,相互推诿;行政奖励标准模糊,程序缺失等问题。这些问题使行政奖励实施陷入窘境,也与依法行政的法治精神相背离,影响了行政奖励效率的发挥。针对以上问题,文章立足实践,看古思今,借鉴国外先进做法,提出一系列理论观点和法治化建议,呼吁国家加快对行政奖励立法的进程。本论文共分为四部分,第一部分理论综述。结合各学者对行政奖励制度的研究对政奖励制度概念进行定位和概括;对行政奖励法律依据和性质进行全面总结。第二部分分析我国不同历史阶段的行政奖励制度情况,通过列举实例剖析行政奖励制度的现状,提出问题并分析产生问题的原因。第三部分通过分析国外行政奖励的实践经验,为我国行政制度的法治化建设提供可取之处。第四部分针对行政奖励制度存在的现实问题,对行政奖励制度的法治化建设和完善进行思考,并提出自己的想法和建议。
[Abstract]:In the modern society of rule of law, administrative reward system, as a means of management, also plays a more and more important role. With the improvement of the level of education for all and the enhancement of human rights consciousness, citizens' awareness of protecting their rights is also improving. Compared with the previous coercive and punitive measures, the former managers began to weaken the mandatory nature of the administrative behavior with the consciousness of the service providers, taking the inducement and encouragement as the goal, in order to enhance the active initiative of the managers. In order to improve the efficiency and effect of administrative behavior, the administrative reward system embodies the idea of rule by law and people-oriented in our country, which is not only conducive to the realization of administrative goals, but also makes the status of citizens be improved and respected. Although some laws and regulations of our country have already mentioned the administrative reward, and many scholars have discussed its related content, the author thinks that in the absence of relevant case analysis, only theoretical analysis can only be regarded as a theory. Only on the basis of judicial practice, the theory can bloom its vitality. Some scholars have said that the legal system, especially the development of legislation is often later than the judiciary. This kind of dislocation is more reasonable to a certain extent. First, legislators cannot speculate on the problems that may be encountered in the process of implementing the law, so only when more and more problems are presented to legislators by the occurrence of cases. Only when we put the law in an extreme situation can we excavate its deep meaning and have vitality. There is no doubt that this kind of dislocation brings a lot of trouble to the judiciary. There is no special legislation on administrative reward in our country. At first, even the relevant articles are few, which makes the reasoning part of the court decision look so lame. In recent years, the frequent cases of administrative reward show that the administrative reward law has not been issued yet, which leads to the problems in the concrete practice of administrative reward, such as the absence of legislation of administrative reward system and the abuse of discretionary power of administrative organ; The responsibilities of administrative organs are not clear, and they shirk each other; the standard of administrative reward is vague, and the procedure is missing. These problems make the implementation of administrative reward in an awkward situation, and also deviate from the spirit of rule by law, and affect the efficiency of administrative reward. In view of the above problems, the article bases itself on practice, looks at the past and the present, draws lessons from the advanced practices of foreign countries, puts forward a series of theoretical viewpoints and legal suggestions, and appeals to the state to speed up the process of administrative reward legislation. This paper is divided into four parts, the first part is a theoretical review. Combined with the scholars' research on the administrative reward system, the concept of the political reward system is orientated and summarized, and the legal basis and nature of the administrative reward system are summarized in an all-round way. The second part analyzes the situation of the administrative reward system in different historical stages of our country, analyzes the current situation of the administrative reward system by citing examples, puts forward the problems and analyzes the causes of the problems. In the third part, by analyzing the practical experience of foreign administrative awards, it provides some advices for the rule of law construction of our country's administrative system. In the fourth part, aiming at the problems existing in the administrative reward system, the author thinks about the construction and perfection of the administrative reward system by law, and puts forward his own ideas and suggestions.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.1

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