公权论的中国变迁

The Transformation of Public Rights Doctrine in China

公权论是公法的基础理论之一,是国家与私人之间基本法律关系的认识。自清末传入我国以来,公权论在主体、内容和功能等方面都发生了诸多变化。虽然清末的公权主要是在个人权利层面上使用的,但也出现了国家公权的用法,而国家和个人双重主体的公权成为民国时期的主流。在新中国,公权论退出了行政法学,之后又转换为行政相对人的权利理论,而国家公权论近乎销声匿迹。进入新世纪之后,公权论借助于公权利的概念再次兴起,并逐渐侧重于第三人公权利的保护,回应了新的时代关切,这也将成为公权论新的增长点。

The doctrine of public-rights is one of the fundamental theories of public law, which is the understanding of the basic legal relationship between the state and private individuals. Since its introduction into China at the end of the Qing Dynasty, the doctrine of public-rights has undergone many changes in terms of subject matter, content and function. Although public-rights in the late Qing Dynasty was mainly used at the level of individual rights, the usage of state public rights also emerged, and public rights with dual state and individual subjects became the mainstream in the Republic of China. In the new China, the theory of public-rights withdrew from administrative jurisprudence and later converted into the theory of the rights of administrative relatives, while the theory of state public rights nearly disappeared. After entering the new century, the doctrine of public-rights has re-emerged with the concept of public rights, and gradually focuses on the protection of the public rights of the third parties, responding to the new concerns of the times, which will become a new growth point for the doctrine of public rights.