合作行政背景下行政程序的变革与走向

Reform and Trend of Administrative Procedure Under the Background of Public-Private Cooperation Administration

合作行政背景下的行政程序是一种新的行政程序形态。协商民主、反思性法以及公私法融合为其提供了深厚的基础,此种行政程序可以在提升行政权力的民主正当性、行政行为的可接受性以及社会的稳定性中起到重要作用。具体而言,行政程序将朝着以下的方向变革:程序价值的兼容并包、主体结构的伙伴化、程序风格的交往理性化以及程序表达的论辩规则化。基于此,未来在制定统一的中国行政程序法时,在制度选择上需要强化对私人主体承担行政任务的程序规范,重视重大行政决策中的协商式治理,注重合作式行政程序的设计与推广以及程序参与主体在协商程序中的积极义务。

Relationship between nation and citizen is regulated by generalized administration law. So, along with the changing of relationship between nation and citizen, administrative law system has to acclimate with that changing. Deriving from public administrative reformation in the 1970s, Cooperative Governs gradually becomes the well performed key to the government failure of traditional administration thereafter. By now, the new type of administrative state requires a set of administrative law technology, of which administrative procedure is a part. Accordingly, under the background of cooperative administration, the change and trend of administrative procedure turns into a significant academic issue which needs more attention. This paper mainly deals with the following things; What is the impact cooperative administration has on the traditional procedure？ Under the background of cooperative administration, is the administrative procedure justified in theory and practice？ What＇s the direction of its transform？ And how to establish a specific system under the background of cooperative administration？ Cooperative administration has the following impacts on the traditional administrative procedure： Firstly, the relationship between citizen and government going to be polarization and equal-oriented administrative legal relationship with service-cooperation which has take the place of high-powered administrative relationship with order-obey. And the coercive component in the traditional administrative procedure is reduced. At the same time, autonomy is ascending. Secondly, because of the preceding polarization, the scope of the administrative procedure law must be expanded. It manifests as more private subject should be regulated by administrative procedure. While traditional procedure law could not cover the private sectors who take part in the administrative duties with government as the new one. Thirdly, inherent closed structure of the traditional procedure could not deal with the diversification of interests coming with cooperation administration. Traditional administrative procedure should transfer to negotiated administrative procedure based on equal-oriented administrative legal relationship. Lastly, under the background of cooperative administration, citizen and government could work together in a variety of forms including kinds of cooperative administrative act belongs to unilateral administrative actions, a great deal of formal and informal cooperative procedure have been brought into being, but traditional procedure could not cover a great deal of cooperative administrative procedure neither in formal nor informal. Administrative procedure under the background of cooperative administration not only could deal with the challenge coming with the cooperative governs, but also has a profound foundation itself. Specifically, Consociational Democracy laid the most fundamental justification foundation for it. While reflection mechanism and interactive program in reflective law laid the foundation of directly communication, negotiation and cooperation. Meanwhile, under the background of cooperative administration, the rising focus on private and legal procedure in administrative procedure accords with the trend of convergence of public and private law. Meanwhile, administrative procedure under the background of cooperative administration is of practical significance. That is to say, firstly, the new one views administrative processes as political processes. Final agreement was made in negotiation, interference and compromise between various interests subject through the given processes, which laid the justification foundation for administrative power. This is exactly an independent model of the formation of democratic legitimacy. Then acceptability of administrative actions is different from legitimacy of administrative action. The former one values soundness of the act more than the later one. In the open discretionary range, administrative procedure under the background of cooperative administration creates a platform to communication between public and private. Administrative action born in this way is more acceptability. Finally, administrative procedure under the background of cooperative administration has a restriction effect on all participators. Except of the obvious unjust processes, no other reasons could overturn the result coming with the processes. The very acceptability could confirm the stability of the social relationship. The major conclusion of this paper is the description of administrative procedure＇s transforming direction, under the background of cooperative administration. To be specific, there are four parts： The first is the compatibility of procedure value. Administrative procedure under the background of cooperative administration is open. It means various parties could discover the possibility of value compatibility and value order by interference, communication and dialogue. The second comes to the partnership of subjeet~ s relationship. Administrative procedure under the background of cooperative administration transformed from linear structure into network, in which the will of each subject transmitted in an interactive way, so that public sectors share authority and administrative duties with private subiects. Interactive rationalization in procedure is the third part. Administrative procedure under the background of cooperative administration provides an open and unrestricted environment for interactive rationalization. That could meet program participants＇ need of expression. The last emphasizes the expression under discuss rule-driven procedure. It provides a code of action to the intercourse platform, which has advantages over solving disputes. Based on that, when we draft the administrative procedural law at the national level in the future, we should focus more on regulations over privates participating in administrative duties, negotiated-rule in major administrative decision-making, designing and promoting of the cooperative administrative procedure, as well as participators~ positive responsibility in the cooperative administration. This article is innovative due to the following aspects： First, discovering the troubles the traditional administrative procedure faced under the background of cooperative administration insightfully, and manages to offer a brand new view of administrative procedure. Second, describing the transforming direction of administrative procedure under the background of cooperative administration, which could guides the legislation of national level administrative procedural law in the future.