论法治剩余的行政吸纳——关于“外嫁女”上访的体制解释

On Administrative Absorption of Legal Residues:Institutional Interpretation of the Petition of“Outmarried Women”to Higher Authorities

以"外嫁女"上访为代表的一类社会矛盾,由于缺乏对应的法律规范,在解决过程中很难采用是非对错的裁决模式处理。大量无法进入法律渠道的法治剩余问题深刻地困扰基层治理。信访制度及其背后的行政体制采用与法院相异原则对待社会矛盾,践行一套独具特色的矛盾化解机制。信访制度一方面将不能进入法律途径的法治剩余问题吸纳进入行政体制,激发地方政府积极回应社会矛盾,同时促进行政组织内部资源优化配置,指向社会治理目标。信访制度具备矛盾承接与行政体制激活双重功能,在基层治理中扮演重要角色。

The social unrest caused by petition of the'out-married women'to the higher authorities has been mishandled by white-and-black arbitration due to the lack of a corresponding set of laws. The legal residues which cannot enter the legal channels are profoundly besetting grassroots governance. The petition institution and the administrative system behind it adopts a conflict-solving mechanism in dealing with social issues that is different from the principles of the court. As a matter of fact,the petition institution is supposed to absorb the legal residues,which have been denied access to the law,into the administrative system and motivate the local governments to actively respond to social contradictions. At the same time,it is supposed to promote the optimization of the internal resources of the administrative organs for the purpose of better governance. The petition institution therefore bears the dual function of taking over conflicts and activating the administrative system. It has an important role to play in grassroots governance