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| 文章编号：1672-3104(2017)04-0044-09 |
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检视开发区管理机构的法律性质——基于规范分析的视角 |
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邹奕 |
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（四川大学法学院，四川成都，610207） |
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| 摘 要： 作为地方行政组织，开发区管理机构的法律性质不甚明晰，将其认定为人民政府的“派出机构”抑或“派出机关”均具有一定的规范依据。然而，第一种定性在现实中将面对复杂的法律问题，如作出具体和抽象行政行为的主体资格问题；第二种定性则会遭遇明显的规范困境，它不仅背离了《地方组织法》对于派出机关的设置，而且不符合《宪法》有关行政区划的设计。应对这一两难之境的进路有三：其一是限定和控制开发区管理机构的行政权力，使其基本符合“派出机构”的定性；其二是修改《宪法》和法律，将其界定为一类新型的“派出机关”；其三是逐渐取消开发区管理机构的建制，代之以县级、乡级人民政府或者街道办事处。相比之下，第三条进路最为理想。 |
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| 关键词： 开发区管理机构；人民政府；派出机构；派出机关 |
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An examination of the legal nature of management organization in development zone: An analysis of current laws |
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ZOU Yi |
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（School of Law, Sichuan University, Chengdu 610207, China） |
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| Abstract: As local administrative organizations, management organizations in development zones have never been clearly defined for the purpose of their legal nature. There are different legal grounds on which they could be recognized as dispatched office or dispatched agency of local people’s governments. However, if recognized as “dispatched offices,” management organizations have to face complex legal problems in effect, such as the subject qualification to perform specific and abstract administrative actions; but if recognized as “dispatched organizations,” they have to encounter obvious legal obstacles in law, and their existence will be in conflict with not only the setting of dispatched agencies under the Organic Act of the Local People’s Congress and Local People’s Government but also the design of the administrative division under the Constitution. To get rid of the dilemma, there are three alternatives. Firstly, administrative powers of management organizations shall be limited and controlled to make management organizations conform basically to the legal nature of “dispatched offices.” Secondly, the Constitution and statutes shall be amended so that they could be defined as a new type of “dispatched organizations.” Thirdly, the system of management organization shall be gradually cancelled in development zones, and the governments at the county and township levels or the neighborhood office shall be established instead. By contrast, the third alternative is optimal. |
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Key words: management organization of development zone; people’s government; dispatched office; dispatched agency |
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