行政承诺若干问题法律分析
发布时间：2019-03-19 11:56
【摘要】：传统的行政执法历来强调控权,注重以强制性手段来完成行政管理目标。随着政府管理理念的转变,行政执法一改以往严肃、刻板以及居高临下的传统、强制管理模式,逐渐转变为更加柔和、灵活的执法方式。为人民服务的导向使得行政执法也必然与社会大众紧密结合。在行政管理过程中,作为一种非强制性执法方式的行政承诺凸显了行政主体与行政相对人的良好互动,改变了以往行政主体和相对人之间对立的局面。虽然行政承诺的大量运用有助于提升行政主体的正面形象,但客观来讲,由于行政承诺的概念、性质等尚无一部法律明确界定,并且学术界对此也没有达成一致意见,导致行政承诺的应用混乱,产生了一系列不规范问题：行政主体肆意作出行政承诺；行政相对人不合理回诺；行政主体的诺而不践等等。此时就有违行政承诺的初衷,不利于行政主体通过非强制性行政行为进行管理。因此,应当重视并深入行政承诺的研究。 通过对国内学者的研究成果的分析,笔者看到,尽管学界不乏对行政承诺的研究,但实际上并没有真正将行政承诺作为一项具体的、独立的法律制度加以研究。本文第一部分是行政承诺概述,主要介绍行政承诺的内涵、外延、行政承诺与相关概念的比较以及行政承诺的基本要素。鉴于目前对行政承诺性质的纷繁争议,本文第二部分对行政承诺的性质做了重点分析,试图找到解决实践中由于行政承诺的性质不清带来的一系列问题的途径。本文第三部分内容介绍行政承诺的程序和效力问题。在作出程序中重点指出了行政承诺的启动、公示以及送达；在实现程序中主要探讨行政相对人的回诺,包含回诺的方式、期限和原则。本文最后一部分介绍行政承诺的法律责任,主要包括行政承诺法律责任的承担主体、追究行政承诺法律责任的途径以及行政承诺法律责任承担方式。本部分明确了行政承诺责任的承担主体不仅仅是行政主体,还包括行政相对人。在追究行政承诺法律责任的途径中,笔者将行政承诺纳入到行政诉讼和行政复议范围中,确保行政相对人能够有更全面的手段来保障自己的合法权益。在责任方式上,除了说明行政主体承担责任的几种方式外,对于行政相对人的责任承担方式也作了简单探讨。
[Abstract]:Traditional administrative law enforcement has always emphasized the control of power, focusing on the mandatory means to achieve the objectives of administrative management. With the change of the government's management idea, the administrative law enforcement has changed into a softer and more flexible law enforcement mode, which is a serious, rigid and condescending tradition, and the compulsory management mode has gradually changed into a softer and more flexible way of law enforcement. The orientation of serving the people makes administrative law enforcement bound to be closely integrated with the general public. In the process of administrative management, the administrative commitment as a non-mandatory way of enforcing the law highlights the good interaction between the administrative subject and the relative person, and changes the situation of the antagonism between the administrative subject and the relative person in the past. Although the extensive use of administrative commitments helps to enhance the positive image of the administrative subject, objectively speaking, due to the concept and nature of administrative commitments, there is not yet a clear definition of the law, and there is no consensus in the academic community on this. Leading to the confusion of the application of administrative commitment, there are a series of non-standard problems: administrative subject wantonly to make administrative commitment; The administrative relative person does not return the promise reasonably; the administrative subject's promise and does not practice and so on. At this time there is a violation of the original intention of administrative commitment, which is not conducive to administrative subject management through non-mandatory administrative acts. Therefore, we should pay more attention to the study of administrative commitment. Through the analysis of domestic scholars' research results, the author can see that although there is no lack of research on administrative commitment in academic circles, in fact, administrative commitment has not really been studied as a concrete and independent legal system. The first part of this paper is an overview of administrative commitment, which mainly introduces the connotation and extension of administrative commitment, the comparison between administrative commitment and related concepts, as well as the basic elements of administrative commitment. In view of the numerous disputes about the nature of administrative commitment, the second part of this paper focuses on the analysis of the nature of administrative commitment, and tries to find a way to solve a series of problems caused by the unclear nature of administrative commitment in practice. The third part of this paper introduces the procedure and effectiveness of administrative commitment. In the process of making an administrative promise, the initiation, publicity and delivery of the administrative promise are emphatically pointed out; in the realization procedure, the author mainly discusses the return of the administrative counterpart's promise, including the way, the time limit and the principle of the return of the administrative promise. The last part of this paper introduces the legal liability of administrative commitment, including the main body of the legal responsibility of administrative commitment, the way to investigate the legal responsibility of administrative commitment and the way of undertaking the legal responsibility of administrative commitment. This part makes clear that the main body of administrative commitment responsibility is not only administrative subject, but also administrative counterpart. In the way of investigating the legal responsibility of administrative commitment, the author brings administrative commitment into the scope of administrative litigation and administrative reconsideration to ensure that the administrative counterpart can have more comprehensive means to protect their legitimate rights and interests. In terms of liability mode, besides explaining several ways of administrative subject's responsibility, this paper also makes a brief discussion on the way of administrative relative person's responsibility undertaking.
【学位授予单位】：内蒙古大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.1
本文编号：2443500
[Abstract]:Traditional administrative law enforcement has always emphasized the control of power, focusing on the mandatory means to achieve the objectives of administrative management. With the change of the government's management idea, the administrative law enforcement has changed into a softer and more flexible law enforcement mode, which is a serious, rigid and condescending tradition, and the compulsory management mode has gradually changed into a softer and more flexible way of law enforcement. The orientation of serving the people makes administrative law enforcement bound to be closely integrated with the general public. In the process of administrative management, the administrative commitment as a non-mandatory way of enforcing the law highlights the good interaction between the administrative subject and the relative person, and changes the situation of the antagonism between the administrative subject and the relative person in the past. Although the extensive use of administrative commitments helps to enhance the positive image of the administrative subject, objectively speaking, due to the concept and nature of administrative commitments, there is not yet a clear definition of the law, and there is no consensus in the academic community on this. Leading to the confusion of the application of administrative commitment, there are a series of non-standard problems: administrative subject wantonly to make administrative commitment; The administrative relative person does not return the promise reasonably; the administrative subject's promise and does not practice and so on. At this time there is a violation of the original intention of administrative commitment, which is not conducive to administrative subject management through non-mandatory administrative acts. Therefore, we should pay more attention to the study of administrative commitment. Through the analysis of domestic scholars' research results, the author can see that although there is no lack of research on administrative commitment in academic circles, in fact, administrative commitment has not really been studied as a concrete and independent legal system. The first part of this paper is an overview of administrative commitment, which mainly introduces the connotation and extension of administrative commitment, the comparison between administrative commitment and related concepts, as well as the basic elements of administrative commitment. In view of the numerous disputes about the nature of administrative commitment, the second part of this paper focuses on the analysis of the nature of administrative commitment, and tries to find a way to solve a series of problems caused by the unclear nature of administrative commitment in practice. The third part of this paper introduces the procedure and effectiveness of administrative commitment. In the process of making an administrative promise, the initiation, publicity and delivery of the administrative promise are emphatically pointed out; in the realization procedure, the author mainly discusses the return of the administrative counterpart's promise, including the way, the time limit and the principle of the return of the administrative promise. The last part of this paper introduces the legal liability of administrative commitment, including the main body of the legal responsibility of administrative commitment, the way to investigate the legal responsibility of administrative commitment and the way of undertaking the legal responsibility of administrative commitment. This part makes clear that the main body of administrative commitment responsibility is not only administrative subject, but also administrative counterpart. In the way of investigating the legal responsibility of administrative commitment, the author brings administrative commitment into the scope of administrative litigation and administrative reconsideration to ensure that the administrative counterpart can have more comprehensive means to protect their legitimate rights and interests. In terms of liability mode, besides explaining several ways of administrative subject's responsibility, this paper also makes a brief discussion on the way of administrative relative person's responsibility undertaking.
【学位授予单位】：内蒙古大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.1
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