论特别权力关系理论的否定——以德国法学家乌勒二分理论为视角

On the Negation of the Theory of Special Power Relations——From the perspective of German Jurist Uhle's Binary Theory

特别权力关系理论是德国传统行政法学所构建的一种特别理论,其对许多大陆法系国家都产生了极大影响。该理论核心在于将某些行政事务排除出法律保留原则的约束,赋予其不受司法审查的行政绝对领域。特别权力关系理论的存在并不违反自由法治国家的法治要求,但是却不可避免地与社会法治国家的法治精神相悖,故对其予以否定乃为时代之必然要求。否定的过程并非一蹴而就,而是渐进的缓慢过程;其中,乌勒的基础关系和管理关系二分理论无论是在理论还是在实务上都影响至深。

The theory of special power relationship is a particular theory built by the traditional German administrative law and it has a tremendous impact on many civil law countries. The core of this theory is the exclusion of some administrative affairs from the constraints of law reservation principles, allowing some administrative fields not subject to judicial review. The existence of the special power relationship theory originally did not violate the rule of law in the free country ruled by law, but it inevitably runs counter to the spirit of the rule of law in the social state under the rule of law. Therefore, with the changing times it is necessary to be denied. Negation process is not accomplished overnight, but it is a gradual, slow process. In this process, Uhle＇s binary theory between basic-relations and management-relations has profound impact whether in theory or in practice.