新世纪中国行政法与行政法学发展分析——放权、分权和收权、集权的立法政策学视角

An Analysis of Development of Administrative Law and the Science of Administrative Law of China in the New Century——The View of Legislative Policy Study on Separation of Powers and Centralization of Powers

现代国家的行政以实现人民福祉或称国家和社会公共利益为其逻辑起点和最终归宿。行政介入的过程必须体现为对公共利益或者人民福祉的追求,体现为对市民、市场的补充性,体现为对诸多主体、诸多价值和诸多利益的均衡性。对于新世纪中国行政法制建设和行政法学理论研究来说,架构科学的行政评价的标准和体系,既是迫切的任务,又是远大的课题。如何克服政府介入的消极作用,确保行政进行自我拘束,防止其从宪法所确立的责任体系中分离出去,是各国宪法学和行政法学所面临的共同课题。“依法律行政”本身意味着法律赋予行政以框架和秩序,设定其权限范围,赋予其相应的裁量余地。行政法学不仅要分析行政国家的现状,而且还必须开拓对行政权力规范和制约的基本理论和制度,形成能够作为政府权力运作行动指南的法哲学和法治观念。科学的行政法学原理和理论体系的任务,就是要抑制行政国家的消极作用,同时又要充分利用行政国家中行政权的积极能动作用,建立健全民主主义的参与机制,最大限度地追求公共利益并保护和发展个体利益。

The starting point and end-result of administration in modern countries are to realize the happiness of the people, or in another way, the public interest of the nation and the society. The process of administrative interference has to demonstrate the pursuit for public interest or the people＇ s happiness, to demonstrate the complementarity for citizens and the market ,to demonstrate the balance among several different subjects, values and interests. For the construction of administrative legal system of China in the new century and theoretical study of science of administrative law,it is not only an urgent mission but also a deepening subject to develop a scientific standard and system for administrative evaluation. It is a common subject faced both by the science of constitution and administrative law throughout the world that how to avoid the negative effects of government interference, to insure the self-restraint of administration and to prevent its separation from the liability system established by constitution. ＂Administration by law＂ means that the law endows administration with framework and order, set the jurisdiction of administrative power and gives it the corresponding room of discretion. The science of administrative law not only has to analyze the reality of administrative nation, but also has to exploit the basic theories and systems for the regulations and checks of administrative power, so that it can form a jurisprudence and concept of ruling by law which functions as the guideline of the operation of government power. The mission of scientific administrative law principles and theoretical systems is to restrain the negative effects of administrative nation, while at the same time to fully utilize the positive and motile effects of administrative power in administrative nation. The mission also is to set up a sound participant mechanism of democracy and to pursue public interest in the maximum way while protect and develop individual interests.