論行政舉報的憲法依據

On the Constitutional Basis of Administrative Reporting

爲保障行政舉報法律體系的融貫，破解因權利模糊所導致的實施難題，有必要通過法律解釋確立行政舉報的憲法依據。關于行政舉報憲法依據的諸多爭論中，主流觀點是將《憲法》第41條的“公民監督權”解釋爲權源基礎。但由于行政舉報不具有糾錯的基本意涵以及權力制約的核心功能，且將此視作監督權會脫離憲法權利的功能定位，故從該條款進行推導值得商榷。行政舉報的本質是公私合作背景下的信息規制工具，其作用是爲相對封閉的行政科層制提供違法信息與民主資源。依循人民主權、表達自由等基礎理論的推演，可將《憲法》第2條“參與管理”條款、第27條“國家機關傾聽意見”條款以及第35條“言論自由”條款解釋爲行政舉報憲法依據的規範群，構建舉報人與行政機關受憲法支配的參與性秩序。

In order to ensure the integration of the normative system of administrative reporting and solve the implementation problems caused by the ambiguity of rights, it is necessary to establish the constitutional basis of administrative reporting through legal interpretation. Among the many debates on the constitutional basis of administrative reporting, the mainstream view is to interpret the “citizen´s right of supervision” in Article 41 of the constitution as the source of power. However, because administrative reporting does not have the basic meaning of error correction and the core function of power restriction, and seeing that as a super vision right will devinte from the functional orientation of the constitutional rights, it is debatable to deduce from this clause. The essence of administrative reporting is an information regulation tool under the background of publicprivate cooperation. Its role is to provide information of illegal acts and democratic resources for the relatively closed administrative bureaucracy. According to the deduction of basic theories such as peoples sovereignty and freedom of expression, Article 2 “participation in management”, Article 27 “state organs listen to opinions” and Article 35 “freedom of speech”of the Constitution can be interpreted as a regulation group of administrative reporting based on the constitution, so as to build a participatory order in which informants and administrative organs are governed by the constitution.