行政法上的善意履職原則研究

作為法律實施的重要方式，行政行為應遵循合法、合理和程式正當等行政法基本原則，但這些原則對行政行為作成機制中的主體性要素，即行政機關和公職人員的主觀狀態，以及角色與功能的契合度等職業倫理問題關注明顯不足，導致法律實施效果不彰。為此，應儘快完善行政組織法、行政程式法和行政倫理法，確立和建構善意履職原則，規範和引導公職人員善意行使職權，以形成對抗形式主義和官僚主義的有效法律機制。從正向看，善意履職原則的內涵是:忠實地實施法律，公平公正、盡職盡責；有意探尋並誠實說明所有的相關考慮；真誠認可並努力使行為符合法律的目的。從反向看，“非善意”履職包括對公民的冷漠、對公務的敷衍、對自利的掩飾等。可以通過向下授權、提高專業化水準、簡化科層等方式，並確立不良或非善意行為的調查、職業倫理的評價與指導、考核與問責聯動等機制，促進善意履職。

As an important requirement of legal implementation, administrative act should follow the basic principles of administrative law, such as lawful, reasonable, procedural and just. However, these basic principles do not pay enough attention to professional ethics issues such as the subjective elements of administrative act formation mechanism, that is, the subjective state of administrative organs and public officials, as well as the fit between roles and functions. Therefore, they have great limitations, leading to the ineffective effect of legal implementation. In order to improve the effectiveness of legal implementation ,the principle of execution of duty in good faith should be adopted. From a positive perspective, there are three connotations of the principle of execution of duty in good faith: (1) faithfully implementing the law, being fair, just and conscientious; (2) intentionally exploring and honestly stating all relevant considerations; (3) honest acknowledgment and efforts to make be consistent with the purposes of the law. On the contrary, the execution of duties in bad faith includes indifference to citizens, perfunctory performance of official duties, covering up for self-interest and avoidance of problems. Therefore, we should work more on the administrative procedural law, administrative organic law and administrative ethics as soon as possible, establish and construct the principle of execution of duty in good faith, regulate and guide the public officials to exercise their functions and powers, so as to form the most effective legal mechanism against formalism and bureaucratism.