合法预期论文：我国行政法合法预期保护原则之确立

合法预期论文：我国行政法合法预期保护原则之确立【中文摘要】对行政法基本原则的研究能够起到深化行政法学研究和完善行政法制的重大作用,为适当约束行政机关的行政行为,保护行政管理相对人的合法利益,我国行政法中规定了信赖保护原则,但由于该原则范围较狭窄,在实际操作中受到诸多限制。

因此,西方一些国家行政法中存在的合法预期保护原则为我们带来了更广阔的思路。

合法预期保护的概念源于德国法,此后,在欧盟、法国、英国、美国等国家的行政法中得以广泛应用。

本文拟在了解西方主要国家在合法预期保护制度的基础上,针对我国现状,提出确立我国行政法合法预期保护原则的框架以及相应的保护机制和措施。

【英文摘要】To build a credible government, constrain the administrative organs , protect the legitimate interests of the private party in administration ,the administrative law formulated the principle of The faith protection .But in practice, the faith protection principles are not adapted to the circumstances, the executive authorities of the administrative process is necessarily restricted. Some Western countries have legitimate expectations in administrative law principle of protection brought us new ideas, the principles can promote the Administrative guidance , administrative compensation and other systems and theories of reconstructionand reflection, and the give us a new theory of the review and thinking to accelerate the establishment of the rule of law, and make the government of the state and citizens develop a good relationship between.This article is divided into three parts with the gradual in-depth analysis.The first part is about the protection of legitimate expectations. First discusses the protection of legitimate expectations principles in Germany, the European Union, the United Kingdom, and the United States, and second, focuses on the relationship between the legitimate expectations protection principles and The faith protection principles, that the introduction of the principle of legitimate expectations protection reasons, the conclusion is that the legitimate expectations as a standard operational stronger, because in trust protection principle, the focus of the protected object is the executive administrative counterpart behavior from the trust, which is a subjective standard, there are some difficulties identified. The legitimate expectations of civil servants from government agencies conduct and speech, the principle object of protection is the result of administrative action made by the executive authorities must be able to rise the legitimate expectations of ordinary people, which is expected to include both theadministrative organ in the future will make a specific administrative act, including procedures based on specific administrative act made. This is an objective standard. In addition, depend on theprotection of the theory is difficult to describe the protection of personal, it is one-sided to advocate the protection of personal interests, but the principle of protection of legitimate expectations claim the protection of personal interests, it also emphasizes the protection of public interests. And then, the article analysis of the composition of legitimate expectations, expected to be caused by the acts of the executive authorities, including policies issued bythe executive authorities, to make administrative decisions, promises, and the formation of the practice and so on. Meanwhile, the content must be reasonable, the expected must be legal, the last of the part is about the protection of legitimate expectations, it is divided into three aspects, namely, procedural safeguards, physical protection, indemnity (compensation) compensation protection.The second part is a comparative study about the principles of legitimate expectations, the article categorized and classified the situations of the Legitimate Expectations, and shows the way in Germany, in the European Union, and in France, compare withthe cases in our practices, finally expatiate analysis and ideas. These three situations are, first, the Administrative organs changed the policy. Policy is part of civic life, The executive authorities and the relative people established a link between, when the policy in place, the executive should not be arbitrary unilateral change policy, it should be constrained in the program. Considering China is in the social transition, many industries are in planning system to the market system. The initial policy, due to a lack of executive experience, information channels are sluggish, so less to research and listen. With the rapid development of society, the system is not as useful as it was. Therefore, I think, on the one hand is to encourage the executive to take gradual approach to minimize mutations. On the other hand, when the policy changed, Should be protect the individuals. Second, the administrative authority does not fulfill their commitments or provide error information. However, the executive often provide a variety of informal proposals, such as oral reply, published and so on. This shows that the executive authorities in their daily work have to administrative guidance widespread, because there is no formal procedure, when administrative authority does not fulfill its commitments, it should maderelative based on the expected behavior , so, the commitment of the executive must act with the guidance and supervision of strict constraints. First, written information and commitment can lead tolegitimate expectations. Second, take appropriate measures to prevent the relative expected damage, and Administrative organ should not be liable for offer wrong information and commitment. Third, the executive authorities did not implement policies. China’s “Administrative Licensing Law” in the provisions of the administrative licensing conditions “other requirements prescribed by the competent authority,” it shows that our law gives great discretion to the executive. To protect the legitimate interests of the administrative counterpart, the executive authorities in the implementation of administrative management must balance stability and flexibility to grasp. Treatment in the case, I think that should do the following two points. First, in the case, the executive must be given to deviate from the policy justification. Second, in the case, the deviate from the policy of the executive authorities should apply determine whether the conduct was unfair or legal standards.The third part is the theory about the protection of legitimate principles, it base on the law. First discussed the principles of law, stability,the rule of law and administrative discretion, administrative self-restraint, the rule of law and personal autonomy relationship. In the rule of law, administrative authorities and the legal relationship established administrative counterpart, the executive administrative management must be according to law, and law stability theory includes two aspects, first, the stability of the law itself. That must be specific and clear. Second, the law should be stability and reliability. The executive can not make arbitrary changes to the administrative acts, while the law must be strictly limited retroactive effect. Stability of the law aims to protect citizens from unforeseen changes in government behavior, not only serve the government administrative acts of administrative efficiency, but also serve the interests of citizens. Therefore, the stability of administrative action law principle with the proper basis is established between the state and citizens a clear and stable relationship. Stability from the principles of law focuses on the principle of legitimate expectations, which are objective standards. At last analysis that the principle of legality is not all the requirements of the rule of law, illegal conduct can also lead to the legitimate expectations. At the end of the article, Iexpress the effectiveness of administrative action theory and the relationship between the legal protections of legitimate expectations. Because the public administration is powerful, soeven if the existence of defects can not determine, the Administrative Act is valid as well, if the permission has not been given formal revocation of state organs, the administrative action still valid. However, if the acts of the executive authorities have a significant and obvious mistakes that anyone can clearly identify, though the state organs does not declare, the administrative actions also may determine invalid as well.【关键词】合法预期行政裁量法治【英文关键词】【目录】我国行政法合法预期保护原则之确立内容提要4-6引言6-8一、合法预期保护原则的基本内容8-21(一) 合法预期保护原则的产生8-11(二) 合法预期保护原则与信赖保护原则的关系11-15(三) 合法预期的构成15-18(四) 对合法预期的保护18-21二、合法预期保护原则比较研究21-33(一) 行政机关改变政策21-25(二) 行政机关不履行承诺或者提供错误信息25-29(三) 行政机关在个案中偏离政策29-33三、合法预期的法理分析33-40(一) 法治和法的安定性原则33-34(二) 法治和行政裁量、行政自我约束34-36(三) 法治和个人自治36-37(四) 违法行政行为引发的合法预期37-38(五) 行政行为的效力与合法预期保护38-40结论40-41参考文献41-44论文摘要44-47Abstract47-50后记51。