一、“行政事实行为”概念的提出 “行政事实行为”这一概念首倡于魏玛共和国时代的德国学者耶律纳克(W·Jelinek)。耶律纳克认为,公权力之事实上行为并非受到行政法支配,如若违法则依刑法、民法或国家赔偿法确定其赔偿责任。在我国,行政主体的“事实行为”概念首见于《行政法概要》:“国家行政机关的行为,有的直接发生法律效果,称为法律的行为;有的不直接发生法律的效果,称为事实的行为。”在“行政事实行为”这一概念的发源地德国,行政事实行为只是一个学理概念,并且这个学理概念从未得到过统一。德国传统的行政诉讼奉行的是“无行政处分即为无法律救济”的诉讼原则,“行政事实行 First, the concept of “administrative act” The concept of “administrative act” was first promoted in the Weimar Republic era by German scholar Y. Jelinek. Yelu Nurk believes that the de facto deeds of public power are not governed by administrative law, and if the deception is illegal, the liability is determined according to the Criminal Law, Civil Law, or State Compensation Law. In our country, the concept of “deeds and actions” of the administrative body is first seen in the Outline of Administrative Law: “The behavior of the state administrative organs, some of which have a direct legal effect and are called acts of the law; some do not directly exert the effect of law and are called De facto behavior. ”In Germany, the birthplace of the concept of“ administrative act of fact, ”administrative factual conduct is merely a concept of reason, and the concept of this principle has never been unified. The traditional German administrative lawsuit pursues the lawsuit principle that “no administrative sanction means no legal remedy” and "administrative action