行政权概念冲突与重新认识和确定

The Conflict between the Concept of Administrative Authority and the Re-cognition and Affirmation

行政权是行政学和行政法学的共同研究对象,它是全部行政法理论的基点和中心范畴。对行政权的控制成为行政法治的关键,然而,由于传统行政权理论的单方性、强制性、执行性的局限,行政权概念内涵与现实行政实践的冲突已屡见不鲜,有时用传统行政权理论解释行政合同、行政指导等行政现象显得力不从心或者大相径庭。因此,本文正是在此基础上,对行政权内涵进行重新认识,分析矛盾表现,并在借鉴国外行政权理论的基础上,展开对现代中国行政权的认识,力求对行政权进行全方位把握,并确立符合现代行政实际特点的行政权概念。

Administrative authority is the common research object for administration subject and Administrative law, and which is the base and center element of all the Administrative law theory. Furthermore, how to control the administrative authority has become the key of the rule of administrative law. However, due to some deficiency of traditional administrative law theory such as unilateralism, compulsion and execution, the conflict between the concept and the law practice is inevitable, in addition, which is difficult to explain some newly phenomena, for instance, the administrative contract and administrative guidance. Thus, on the basis of reflect the traditional administrative law theory, its inner contradiction and foreign administrative law theory, the author points out some newly ideas concerning the concept of administrative authority which is suitable to today's China, furthermore, it can be grasped widely and be accord with modern administrative practice.