迈向新规制:助推的兴起与行政法面临的双重挑战

Towards New Regulations: The Rise of Promoting and the Double Challenges of Administrative Law

随着政府和市场力量事实上的同时强化,经历命令—控制模式向激励模式转变的规制理论再次遇到市场失灵和规制失灵的难题。激励模式与去规制理念紧密相连,它以"理性经济人"为预设,尝试用经济动机指引规制对象的行为选择,从而实现规制目标。但是,由于该预设本身的缺陷,以行为科学为基础的助推机制应运而生。基于无强制而强干预的特质和独特的运作机理,助推机制与此前模式下的规制手段迥然有别,其有效性也不依赖于传统的行政效力,而是依赖于一个双层结构。据此,助推的兴起预示着新规制模式的到来,同时也给行政法的理论发展带来了双重挑战。

With the fact that the government and market forces have actually strengthened at the same time,the regulatory theory that the order-control model has been changed into an incentive model has encountered the problems of market failure and regulatory failure again. The incentive model is closely linked to the concept of deregulation. It presupposes the ＂reasonable economic man＂and tries to use economic motives to guide the behavior choices of regulated targets so as to achieve regulatory goals. However,due to the defects of the presumption itself,a promoting mechanism based on behavioral science emerged. Based on the characteristics of unforced and strong intervention and the unique operating mechanism,the promoting mechanism is quite different from the previous regulatory approach. Its effectiveness does not depend on traditional administrative effectiveness,but depends on a two-tier structure. Accordingly,the rise of promoting indicates the arrival of the new regulatory model,and it also brings double challenges to the theoretical development of administrative law.