行政法律关系性质的反思——基于公私法关系区分的考察

Reflections on The Nature of Administrative Law Relationship——Based on the Divide between Public and Private Law

关于行政法律关系与民事法律关系的性质差别,民法学界认为二者在性质上分别是"不平等"与"平等"的,而以平衡论为代表的行政法学则认为行政法律关系双方的主体地位是平等的,在总体上应该是平衡的。这种认识分歧的根源在于从描述层面向规范层面的跃进,《民法通则》关于平等主体的规定应该是描述性质的,旨在解决调整对象的问题,而不应以此作为法律关系性质应然的判断标准。行政法与民法之分所强调的命令服从关系,其背后的理由只是职权法定与意思自治的差别。这种差别应该在现代法治国家的背景下理解,而不应将命令服从的性质夸大为等同于行政法本身。

Scholars vary a lot as to the difference of nature between administrative law relationship and civil law relationship. It is generally held among civil law scholars that the difference is equality and inequality in nature, while administrative law scholars, such as the theory of balance, think that legal status of the parties of administrative law should be equal, and be balanced as a whole. The source of such a difference lies in the leap from descriptive level to prescriptive level. The provision of General Principles of Civil Law on civil subjects with equal status is supposed to be descriptive, designated to solve the issue of scope of the Civil Law, and should not be taken as the criteria of ought to be of the nature of administrative law relationship. The reason that the difference between administrative law and civil law emphasizing the character of command - obedience, is only the difference between statutory authority and autonomy of will. The difference should be understood under the background of modern Rechtsstaat, and should not equal the nature of command- obedience with administrative law of its own.