行政法开放性之思考

On the Openness of the Administrative Law

行政法应当是一个开放的系统,即对其他社会现象、社会过程、社会关系、治理系统等都是开放的。行政法开放性既是客观的又是必然的,是当代行政法的发展趋势。行政法的开放性有着非常深刻的法治价值,它具有技术规则的吸收功能、公众需求的满足功能、新型社会关系的认同功能、后信息化社会的适应功能。然而,我国行政法在开放性方面是受到阻滞的,可以说还处于相对封闭的状态之下。因此,必须在行政法理论基础、行政法治体系、行政法的实施和行政法的实现等环节上有所突破,重构我国行政法治体系的思路:区分和定位行政法软件与硬件、确立行政法纲领性与规范性的目标选择、合理分类行政法恒定规则与过渡规则、注重行政法输入要素与输出要素的关系转换。

The administrative law should be open to other social phenomena, social processes, social relationsand management systems. The openness of the administrative law is objective, inevitable and it is the develop-ment trend of the modem administrative law. Its openness has important value to the rule of law. It has thefunction of assimilating technical regulations, meeting public needs, complying with new social relation and get-ting used to post-informational society. However, the openness of the administrative law is blocked and in rela-tively closed station. The breakthrough should be made in the theoretical basis of the administrative law, in thesystem of the rule of administrative law and in the imposition and realization of the administrative law. Ways toreconstruct the system of the rule of administrative law are to distinguish and fix the software and hardware ofthe administrative law, establish its programmatic and normative target selection, reasonably discriminate be-tween constant and transitional rules and pay attention to transition between input elements and output elementsof the administrative law.