从行政吸纳到简政放权——法治政府建设的双重逻辑及其转变

From "Administrative Absorption" to Streamlining Administration and Delegating Power——Transformation of Institutional Logic of Building Law-based Government in China

拥有专业、信息、资源优势、充分权威的行政部门和对政府行为具有监督、调整、优化作用的司法治理,代表着建设法治政府的两种基本力量。然而,在国家治理欠缺制度性分权、政府行为边界模糊的发展型政府背景下,由行政部门单一力量主导的法治容易走向"行政吸纳法治",而使法治政府建设陷入行政化、封闭化和地方化并遭遇多重结构性矛盾,司法治理也会受到抑制而处于边缘地位。以简政放权为重点的新一轮行政体制改革和试图克服地方主义的司法改革,体现了我国法治政府建设从行政吸纳和司法抑制到行政主导和司法治理双重逻辑并重的转变。从行政吸纳到简政放权,通过重构国家与社会以及政府与市场间关系,有助于解决政府职能混杂、权责不清这一法治政府建设的基础性难题;从司法抑制到司法治理,充分发挥司法对政府行为的监督和优化作用,能够倒逼法治政府建设。我国法治政府建设进入新阶段,需要推进行政改革和司法治理的协调发展。

Two sources contribute to the building of law-based government in China: the administrative authority with sufficient information, resources and legitimacy, and the judicial system which can exert its influence to shape and supervise government actions. However, in the absense of institutionalized separation of powers under the Chinese developmental state, the building of rule of law dominated by the single administrative authority may not only turn into the "administrative absorption of law" and further result in the parochialism and localization of law,but also easily lead to the marginalization of judicial power. The ongoing reform of streamlining administration,delegating power and the deepening reform of the judicial system aiming to mitigate localism after the 18 th National Congress of the Communist Party of China shows that there is a dual transformation of the institutional logic of building law-based government in China, i.e, from the administrative absorption of law to streamlining government and delegating power, and from the marginalization of judiciary to judicialized governance. Within these two transformations, the former helps to mitigate the foundamental issue of ambigious powers and duties faced by the building of law-based government, while the latter also contributes to the legalization of government actions by putting more judicial pressure. The building of law-based government in China has entered in a new era and thus needs to simultaneouly promote the administrative reform and judicialized governance.