论行政权的谦抑性及行政法的相应对待

Research on Tolerant Rule of Administrative Power and Theory Preparation of Administrative Law

与刑罚权同样是公权力,行政权也应当具备谦抑性。人的自律性使行政权的他律性受到抑制,社会自发自生秩序与行政权的创造秩序产生互补,私权的私益性与行政权的公益性各得其所,公民权利程度的强化与政府行政权强制的弱化,都使行政权的谦抑性具备自然属性。行政权如何谦抑性及行政法的相应安排,包括转变观念、转变角色、确立比例原则、推进行政法与民法合理分工、确立适应行政权谦抑性的行为方式等等。

To be a kind of public power, administrative power should also have similar tolerant rule as criminal law. Heteronomy of administrative power is restrained by self-discipline of people. Spontaneous social order is supplied with creative order of administrative power. Private good of private interest and public welfare of administrative power should have their own places. There must be a trend that civil rights have been strengthening and administrative powers of governments have been weakening. Thins all above make tolerant rule of administrative power has certain natural attributes. How to keep tolerant rule of administrative power and theory preparation of administrative law are also discussed in this essay （ including changing ideas, converting the role, establishing principle of proportionali- ty, promoting rational divisions of Administrative Law and Civil Law, formulating acts which fits for tolerant rule of administrative power）.