公共权力范围之重构及其意义

Reconfigure The Scope Of Public Power And Its Significance

传统法学认为,公共权力即公权力,不包括社会领域的自治权,并将公共权力和公权力、行政权力相混淆,致使法律理论和实践对社会领域的自治权关注不够。公共权力是私权让渡后形成的权力集合,应包括国家领域的公权力和社会领域的自治权。文章旨在通过对权力、公权力和公共权力等范畴的比较研究,将公共权力与公权力、行政权力等概念进行区分,进而重新构建公共权力的范围,将社会领域的自治权纳入行政法治的范围,最终完善公共行政理论、行政主体理论以及明确自治组织的法律地位和规制状态。

According to traditional jurisprudence, public power is state power, not including autonomy power in social field. It confuses public power with state power and administrative power, as a result of gray zone, for legal theory and practice pay less atten- tion to the autonomy power in social field. The public power is the integration of power formed by the assignment of private rights, which should include state power in national field and autonomy power in social field. Through a comparative study of power, state pow- er, and public power, ere, the article aims at differentiating public power from state power and administrative power, etc, so as to reconfignre the scope of public power, bringing the concept of autonomy in social field into the rule of administrative law, and finally improve and perfect the public administration theory and administrative body theory, and make clear the legal status and regulating state of the social autonomous organization.