作为私权担保性质的行政法——兼及对行政法理论基础的反思与重构

Administrative Law as the Guarantee of Private Rights——Reflection and Reconstruction of the Theoretical Basis of Administrative Law

作为担保性质的行政法是将行政法放在整个法律体系中来考量的一种方法论,同时又是对行政法理论基础的回应、反思与重构。行政法为私权主体之间正当权益的实现即民法契约内容的实现提供担保,政府具有以行政法对民事契约或民事活动予以担保的能力,行政责任的实质是一种担保责任。平等观念的确立、诚信原则的完备、行政信息公开制度的完善、非强制行政行为的发达、公共财政体制的转变,都有益于作为担保性质行政法的观念的确立与制度建设的实现。担保性质行政法对行政法学范畴的创新在于:私权自由与行政权有限性、行政的双方意思性与单方意志性并存、行政权与私权关系的重新定位、指明形式法治走向实质法治的路径。担保性质行政法与民法作为方法论意义最为重要的关系在于将行政法与民法置于统一法律关系中同构,使双方有了直接对话的机制。

To study administrative law as guarantee of private rights is a methodology to analyze administrative law in the whole legal system as well as a response,reflection and reconstruction of the theoretical basis of administrative law. Administrative law can provide guarantee for realization of justifiable rights and interests between parities in private law,that is,the realization of contracts in civil law. The government can exercise the power to guarantee civil contracts and civil activities by administrative law. Therefore,the administrative responsibility is an obligation of guarantee by nature. For the purpose of establishing such concept and system,several measures are beneficial such as to set up the equality concept,to perfect the principle of good faith,to improve the system of administrative information disclosure,to develop the concept of non- compulsory administrative acts and to transform the public finance system. The administrative law with the feature of guarantee can contribute to the innovation of administrative jurisprudence in aspects such as the coexistence of the freedom of private rights and the limitation of administrative power; the coexistence of the bilateral administrative intentions and unilateral willingness; the relocation of relationship between administrative power and private rights and to lead the path for ruling of law in form to ruling of law in substance. More importantly,such methodology can establish a directive dialogue system between administrative law and civil law within the unified legal relations.