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我国行政实践中广泛存在着行政主体自行设定行政权力的情形,这样的权力设定既无实在法依据,又欠缺法定程序,而且与行政职权相悖。这既影响了行政权力的合理分配,也制约了行政权力的合理构造,更为严重的是,它使行政权对公民、法人和社会组织的干预处于无序状态。我们认为,有效控制行政主体法外设定行政权力既要吸收控权理论的科学内涵,又要确保行政控权更加技术化。为此,必须强化职权法定原则的理论构造、权力设定的公众参与、权力清单制度、权力行使的程序化和权利救济制度。
Administrative practice in our country there are widespread administrative body set itself the case of administrative power, such power is neither established by law, but also the lack of legal procedures, but also contrary to the administrative authority. This not only affected the rational distribution of administrative power, but also restricted the rational construction of administrative power. More seriously, it made the interference of administrative power to citizens, legal persons and social organizations in disorder. In our opinion, effectively controlling the administrative body to set administrative power requires that we not only absorb the scientific connotation of the theory of control, but also ensure that administrative control is more technical. To this end, we must strengthen the theoretical construction of the principle of statutory authority, public participation in the establishment of powers, the power list system, the proceduralization of the exercise of power and the system of right relief.