行政权的法治模式及其当代图景——以交通警察权为例的展开

The Mode of Law of Executive Power and Its Contemporary Picture

在全面深化改革与全面推进依法治国的时代背景下,如何实现行政权的全面有效规制,对此应放置于法治视野中予以求解。有必要援引主导西方公法思想的"规范主义"与"功能主义"两种风格,作为布设行政权法治化治理方案的价值指引。经深入分析发现:规范主义控权模式业已成为主导的规制策略,但面临失灵的危险;功能主义建构模式实现了由涵摄迈向衡量的治理变化;两种治理模式各有优劣并可互补,应当秉持"规范主义控权模式为主、功能主义建构模式为辅"的治理模式。当前行政权的法治化治理应在该治理模式的导引下,主要从立法调控、执法治理、司法技术等三个向度展开制度设计。

On the background of comprehensively deepen reform and promoting the rule by law,how to realize the overall effective regulation to executive power,which should be placed to the field of the vision of rule.It is necessary to introduce two kinds of western concepts of public law of ＂normative＂ and ＂functional＂ as the value guidance of executive power.After analysis we find that：normative control mode has become the dominant regulation strategy,but it is in danger of failure;Functional building mode has realized measure changes in governance;Two governance modes have their own advantages and disadvantages and they could complement each other,we should adhere to the＂normative control mode is priority,functional construction mode is complementary＂.The current governance of executive power should be under the guidance of law and the governance model,and design system mainly from the legislative regulation,law enforcement,and judicial technology.