论行政法的宪政基础——对行政法与宪法之间关系的再认识

On the Constitutional Foundation of Administrative Law

在对行政法与宪法之间关系的认识上,我国行政法学界的主流观点存在一定的片面性。事实上,行政法与宪法具有作为公法的同一性;两者之间也存在作为部门法的差异性;最为重要的是,“宪政国家是行政法的前提”,行政法必须构建在宪政基础之上——行政权的合法性来自于其在宪政结构中的地位与职能、宪政控制行政法治的性质与方向、宪政决定并塑造行政法的风貌与品格。中国行政法同样需要具备宪政基础。

In regard to the mainstream of the academy of the Administrative Law in China, there are some unilateralism in realizing the relationship between the Administrative Law and the Constitutional Law. In fact, as public law, the Administrative Law and the Constitutional Law are identical, but the differences also exist as they belong to different departmental laws. The most important is: 'Constitutionalism is the premise of the Administrative Law', that is, the Administrative Law must be founded on the basis of Constitutionalism which controls the properties and the way of it, also determines and figures its scene and character, and the legitimacy of the administrative power comes form its status and function in the structure of Constitutionalism. In China, the Administrative law also needs the foundation of Constitutionalism.