行政指导是近年来才在行政活动中得到广泛运用的一种新型行政行为方式,在我国实行市场经济之前并不存在真正意义的行政指导。近年来,国家强制性管理功能得到一定程度的弱化,政府管理模式逐步由强制型向服务型转化,行政指导这种非权力、较为柔和的管理模式开始得到广泛运用。目前而言,一般作为法律强制手段的替代用在属于“法律空白”的部分,以减少行政成本从而提高行政效率,由于不具强制执行力,行政指导主要依靠相对方的自愿接受发挥作用。因此,学界普遍认为,就算错误的行政指导,行政主体不用承担法律责任。而实践上也按照这个思路,一般不受理因行政指导引起的诉讼。正是鉴于这种无责任、无依据、无救济的特性,行政指导作为一种特殊的自由裁量权经常被滥用,①因此,本文认为信赖是行政指导的基础,信赖赋予行政指导根本的生命力,也体现了行政指导的真正意义所在。 Administrative guidance is a new type of administrative behavior that has been widely used in administrative activities in recent years. There is no real administrative guidance before the implementation of market economy in our country. In recent years, the state mandatory management function has been weakened to a certain extent, the government management mode has been gradually transformed from mandatory to service-oriented, and administrative guidance has been widely used as a non-power and softer management model. For the time being, as an alternative to legal coercion, it is generally used as a part of “legal gaps” to reduce administrative costs and thereby improve administrative efficiency. Without coercive power, administrative guidance mainly relies on voluntary acceptance by the counterparty. Therefore, the academic community generally believes that even if the wrong administrative guidance, the administrative body does not have to bear the legal responsibility. In practice, according to this line of thinking, the lawsuit caused by administrative guidance is generally not accepted. It is precisely because of this non-liability, foundationless and non-relief characteristic that administrative guidance is often abused as a special discretionary power. Therefore, this article considers that trust is the basis of administrative guidance, trusting the fundamental vitality of administrative guidance, It also shows the true meaning of administrative guidance.