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随着我国由“管理型政府”向“服务型政府”的转变,政府执法理念也由命令式执法逐步向服务型执法转变。行政指导作为一种能够灵活适应各种复杂多变的经济、社会管理需要的“柔性执法”方式,越来越广泛地为我国政府所采用。但是,由于立法的滞后性,我国目前还没有任何关于行政指导的立法,行政指导行为的作出和实施只能由行政机关根据行政实际的需要自由裁量决定,而行政相对人由于行政主体的行政指导行为遭受损害时更是救济无门。从依法行政和保障行政相对人合法权益的角度出发,我国必须制定和完善行政指导的相关立法。又由于行政指导具有较强的操作性和执行性,因而对行政指导的法律规制,更重要的应该是程序法规制。
With the change from “management-oriented government” to “service-oriented government” in our country, the concept of government law enforcement has also been gradually changed from imperative law enforcement to service law enforcement. As a kind of “flexible enforcement” method that can be flexibly adapted to various complicated and changeable economic and social management needs, administrative guidance has been adopted by our government more and more widely. However, due to the lag of legislation, there is not any legislation on administrative guidance in our country at present. The making and implementation of the administrative guidance can only be decided discretionally by the administrative agencies according to the actual needs of the administration. However, due to the administrative guidance of the administrative counterparts, When the behavior is harmed, it is even more helpless. From the perspective of administration by law and protection of the legitimate rights and interests of the administrative counterparts, our country must formulate and improve relevant legislation on administrative guidance. Due to the strong operability and enforceability of the administrative guidance, the legal regulation of the administrative guidance and, more importantly, the procedural rules and regulations should be followed.