从“行政管理”到“国家治理”:执法理念的法治化回应

From “Administrative Management” to “National Governance”:A Response to the Law Enforcement Philosophy under the Rule of Law

随着社会自治领域的日益扩大,以国家权力为核心的一元权力结构逐渐解体,公共权力领域和私权领域的二元性分化开始显现,治理型政府取代管理型政府已逐步成为现代政府建构的主导形态。随着法治国家的不断演进,单纯的形式法治已经无法适应治理型政府的内涵与要求,作为一种更为合乎权利保障要求的法治形式,实质法治亦将在执法过程中发挥其独特的作用。执法理念与执法目的的变迁必然影响到执法理念的更新与升级。管制范式下的干预性执法、惩戒性执法、自卫性执法、专断性执法等理念需要转变,给付性执法、恢复性执法、履职性执法以及参与性执法等理念将逐渐形成。

With the widening self-governance areas,the unitary structure which taking the state power as the core disintegrates grad-ually,the dual differentiation of public power field and private field is beginning to emerge,the government is transforming frommanaging type to governing type ,which is gradually becoming the leading form of the construction of modem government.With thecontinuous evolution of the country under the rule of law,the simple formal rule of law has been unable to adapt to the connotationand the requirements of governing type government,as a law form which is more accord with the protection of the rights,the essen-tial role of law wile play its unique role in the process of law enforcement.The above-mentioned changes of theory of law enforce-ment and law enforcement purposes inevitably have the direct effect of updating and upgrading the idea of law enforcement.In thecontrolling normal form,there are some ideas need to be changed,such as the interventionist,the exemplary,the defensive,and thearbitrary law enforcement ideas,ete.At the same time,some new ideas should be cultivated,such as the payment,the restorative,theduty performing and the participating law enforcement ideas,etc.