作者：叶必丰
作者介绍：上海交通大学法学院教授
出版日期：2022年6月9日
内容提要 我国已经出现了较多行政机关间的委托，并分化为行政机关间的事务委托和职权委托。行政机关间的事务委托与民事代理相同，以委托行政机关的名义实施行政行为并承享法律效果，司法上认为不需要特别法的依据；职权委托系行政职权从一行政机关转移到另一行政机关，并由承继职权的行政机关以自己的名义实施行政行为、承享法律效果的制度。基于职权法定原则，行政机关间的职权委托必须有特别法的依据。特别法对职权委托的规定应遵守相应规则，包括委托对象须为行政机关、委托权限的部分性和不得再委托。行政机关间职权委托的法律效果应归属于受委托行政机关，以贯彻权责利相一致、坚持法治统一、促进行政合作和方便行政诉讼。
关键词 行政委托 事务委托 职权委托 行政职权调整 区域合作
Abstract: In China, there have been a lot of entrustments between administrative organs, which can be divided into the entrustment of affairs and the entrustment of authorities. The entrustment of affairs between administrative organs is the same as civil agency, as the administrative act is carried out in the name of the entrustment organ which also bears the legal effect, and is judicially deemed not to require a special legal basis. Entrustment of authorities is a system whereby administrative authority is transferred from one administrative organ to another, and the administrative organ that inherits the authority carries out administrative acts in its own name and bears legal effects. Based on the principle of statutory authority, the entrustment of authorities between administrative organs must be based on special law. The provisions of the special law relating to the entrustment of authorities should be subject to several rules, including that the entrustee must be an administrative organ, that the entrusted authorities should be partial, and that no re-entrustment should be allowed. The legal effect of the entrustment of authorities between administrative organs should be attributed to the entrustee, so as to ensure the consistency of powers, responsibilities and interests, to uphold the rule of law, to promote administrative cooperation and to facilitate administrative litigation.