新常态下非权力行政的出场与规制

Appearance and Regulation of Non-power Administration in New Normal

在推进国家治理体系和治理能力现代化过程中,作为一种新型的行政范式,非权力行政的重要作用日益凸显。一般而言,非权力行政具备两个基本特征,即公私法的复合性与意志的双向性,但在行政实践中,其实施存有一定的现实困阻,表现在法律依据不足、程序机制不健全、裁量权被滥用、"名"与"实"错位等诸多方面,而有效化解非权力行政这些困阻的最好选择,就是把其纳入法治轨道,施以必要的法律规制。

In the process of promoting the modernization of national governance system and governance capability,non-power administration as a new administrative paradigm is playing an increasingly important role. In general,the non-power administration has two basic characteristics,namely the overlapping between public and private law and the bi-directional nature of the will. Its administrative practice,however,has confronted obstructions such as the lack of legal basis,the imperfect procedure mechanisms,the abuse of discretion,the dislocation of the title and the truth. The best approach to overcome them is to put the non-power administration into the orbit of the rule of law and be exposed to legal regulations.