私人规制的行政法治逻辑:理念与路径

The Rationale for Private Regulation Based on the Rule of Administrative Law:Ideas and Paths

私人规制是以市场为基本动力,弥补传统政府规制缺陷的规制体系:从历史上看,私人规制以市场需求为导向,其产生具有自发性,经历了一个由点及面、纵横双重维度发展的历程;从法理上看,私人规制的方式与权力来源具有多元化和综合性;从本质上看,私人规制是公权力的特殊行使方式,与政府规制存在互为补充又相互竞争的关系。在我国法治语境下,私人规制的运行面临着行政法体系具有封闭性、生成与运行存在逻辑困局、法律制度阙如、私人自治性堪忧以及运行失范而监控乏力等困境与问题。因此,推动行政法体系从封闭走向开放、通过法律提供空间和边界、提升社会组织的自治与公信、遵从正当法律程序与私人正当程序、借助司法的助成与监控作用,是我国有效引入与推进私人规制的必由之路。

Private regulation is a kind of regulation up the defects of the traditional government regulation. system which is based on the market and can make Historically, private regulation oriented by market demand, and its production was spontaneous, so from point to plane it had a process of development with vertical and horizontal dual dimensions. From the legal point of view, the ways of private regulation and the sources of power are diversified and comprehensive. In essence, private regulation is a special kind of exercise of public power, and the relationship between it and government regulation is not only complementary but also competitive. In China, under the context of the rule of law, the running of the private regulation faces some difficulties, including that the system of administrative law is closed, the law is not perfect and it will become anomie when we have no enough ways to control it. Therefore, to promote administrative law system from closure to opening-up, provide space and boundary for private regulation by law, make sure that private regulation complies with the due process of law and private due process, and take advantage of judicial aid, are the necessary ways to effectively introduce and promote private regulation in china.