行政法理论革新呼唤“最佳行政”

The Reform of Administrative Law Calls for the Best Administrative Theory

传统行政法理论（如依法行政原则、合法性标准）为行政法治化起到了无可替代的奠基性作用。但是,传统行政法理论以规制行政和行政救济为主导之定位限制了行政权最大功效的充分发挥并使之呈现僵化之势。行政革新理论针对此提出因应之策,主要包括公私协力理论、行政过程论及行政法律关系论等。在传统理论动力不足和新兴理论能动关照背景之下,＂最佳行政＂理论呼之欲出。最佳行政理论是指在行政法上,行政活动能够达到最为恰当、最符合行政目的之状态。最佳行政既是一项指导原则（与依法行政相对应）,又是一项具体标准（与合法性相对应）。最佳行政理论是为行政权设置缰绳,既防止其脱法,又给予其发挥自主性的空间。

Traditional theory of administrative law （ such as the principle of administration according to law and the standard of legality） has played an irreplaceable role in laying a foundation for administrative le- galization. However, the traditional administrative law theory limits the maximum efficiency of administra- tive power and makes it appear rigid by the orientation of administrative regulations and administrative reme- dies. The theory of administrative innovation puts forward the countermeasures, which mainly include the theory of public - private partnership, the theory of administrative process and the relationship between ad- ministrative laws. Under the background of the lack of traditional theoretical motivation and the active atten- tion of new theories, the theory of best administration is vividly portrayed. The best administrative theory is that the administrative act can achieve the most appropriate and the most consistent with the administrative purpose in the administrative law. The best administration is not only a guiding principle （corresponding to the administration according to law）, but also a specific standard （corresponding to the legitimacy）. The best administrative theory is to set up the reins for administrative power, which can not only prevent it from going out of the law, but also give it the space to play its own initiative.