论公权契约化--兼论国家干预契约化

On Contractualization of Public Right ——Currently on Contractualization of State Intervention

受公私权二元对立及公私法二元划分的影响,禁止公权契约化被视为传统法治的基本原则。然而,随着社会的发展,公权与私权、公法与私法不再是简单的对立关系,而是呈良性互动和融合的发展趋势。因此,现代社会的公权运行逐渐采用契约这种私权行使方式,这一现象可被称为"公权契约化"。作为公权力重要组成部分的国家干预权,采用契约方式来实现干预目的,对构建和谐社会、减少政府失灵及实现经济法的现代化具有积极意义。

For the influence of the binary opposition of the public fight and the private right and the binary partition of the public law and the private law, the contractualization of public fight is forbidden as the basic principle in traditional rule of law. However, with the social development, the above relationship is no longer simply binary for emerging the tendency of positive interaction and fusion. Therefore in modern society the contract which is a typical type of private right operation method is being gradually adopted by the public right operation, the phenomenon of which is called ＇contractualization of public right＇. As an important component of the public right, the state intervention adopting the method of contract to realize the intervention purpose is of a positive meaning for a harmonious society construction, government failure reduce and the modernization realization of economic law.