论现代公法中的程序

On the Procedure in Modern Public Law

广义上的公法包括宪法、行政法、诉讼法、刑法、国际公法与社会保障法等,狭义上的公法主要指宪法和行政法。人们通常意义上所讲的公法一般是狭义的,即宪法和行政法。在缺乏程序的公法制度中,其各项制度最终只能沦为政治的工具。因为这种缺失程序的公法制度使得国家权力与公民权利之间的关系以及国家权力之间的关系只能建立在非理性的基础上,从而使得无论是国家权力的行使,还是公民基本权利的赋予与享有均没有一套严格的程序可遵循。相对于私法来讲,公法的程序更加重要,这是由公法的终极目标和公法的实现方式所决定的。公法的程序理念及其程序规则的制度化,有助于私法自治的充分和有效实现。现代公法中的程序与传统程序之间存在巨大差异。现代公法中的程序发挥着多方面的功能。

In a broad sense, public law includes Constitution, Administrative Law, Litigation Law, International Public Law and Social Security Law, and so on; while in a narrow sense, public law usually only includes Constitution and Administrative Law. People usually memtion public law in a narrow sense, that is, Constitution and Administrative Law. In a public law system in which procedure is not provided, all other systems will become the tool of politics ultimately. Because of such public law system without procedural rules, the relationship between the state and the citizens and the relationship between the respective state powers can only construct on the irrational base. Therefore, neither the Use of public powers nor the enjoyment of citizens＇basic rights has a strict procedure to follow. Compared with private law, the procedure of public law is more important, which is decided by the ultimate aim and the realizing way of public law. The systematization of the idea and procedural rules of public law will help the complete and effective realization of the autonomy of private law. The procedure in modern public law has big difference with the traditional procedure. And the modern public law procedure has functions in many aspects.