Author: Luo

What is the core of administrative law? There may be different answers to this question, as well as different theoretical models, research methods and theoretical models.

First of all, the traditional administrative law takes administrative power as the core to build a theoretical system.

Traditional administrative law constructs a theoretical system with administrative power as the core. The core concept of administrative law in German, Japanese, old China and other pre-war civil law countries is administrative power. This is embodied in the structure of the theoretical system of administrative law. The structure of traditional administrative law mainly consists of three parts: First, the administrative organization law. Administrative organizations, administrative organs and administrative subjects have different meanings and different operational functions, but they are all related to administrative power and exist as carriers of administrative power. The second is the administrative behavior law or the administrative behavior law, both of which are related to the manifestation and specific content of the operation of administrative power. The third is the administrative relief law. The administrative organ shall be responsible for the exercise of its power and compensate the citizens who have suffered damage. Generally speaking, historically, Chinese mainland administrative law countries emphasized the use of administrative law as a tool to ensure the effective exercise of administrative power, and emphasized administrative efficiency and public interest.

The theoretical system of traditional administrative law in Britain and America mainly consists of three parts, namely, delegated legislation, administrative procedure and judicial review. The central principle embodied in these three parts is to restrict power with power. Appointment legislation restricts administrative power through legislative power, administrative procedure controls administrative power in the process, and judicial review restricts administrative power through judicial power. It can be seen that this theoretical system is still built with administrative power as the core, with strong control and no attention to the due position of the other party.

In the early days of reform and opening-up, there was a debate about the nature and function of administrative law in China, and three theoretical viewpoints were put forward: controlling power, protecting power, and controlling power and protecting power. At that time, because administrative law was still in its infancy and eager to respond to the needs of social practice, its concepts, principles and even theoretical framework were "transplanted" from Japanese and China Taiwan Province textbooks. After the mid-1980s, in order to make theoretical preparations for the formulation of the Administrative Procedure Law, China's administrative law circles once debated whether administrative law should "control power", "protect power" or "both protect and control power" around the relationship between administrative law and administrative power, the nature and function of administrative law, and the basic principles of administrative law. The academic debate on "protecting the legitimate rights and interests of citizens, legal persons and other organizations, and ensuring and supervising the administrative organs to exercise their functions and powers according to law" in China's 1989 Administrative Procedure Law has not attracted enough attention, so the legislative purpose of the debate is not in-depth and is closely related to the theoretical debate at this stage.

Since the late 1980s, with the formulation and implementation of China's administrative procedure law, Chinese administrative law scholars have made a more in-depth summary of the development of practice. People gradually realize that it is reasonable to emphasize the maintenance and supervision of administrative power, although the administrative litigation system with administrative power as the core is constructed. However, from the whole theoretical system of administrative legal system and administrative law, its perspective is narrow, its thinking is short and its metaphysical one-sidedness is prominent. People realize that there are many defects in the theoretical system based on administrative power, which makes it difficult to reveal the inherent stipulation and development expectation of administrative law and cannot meet the requirements of the times. In fact, after the Second World War, especially since the 1980s, no matter Japan, the United States or Europe, their administrative law theories are not completely controlled by traditional theories, and they are constantly discussing 2. All these have prompted us to rethink the core issues of administrative law.

Second, reconstruct the theoretical system of administrative law with the relationship between administrative power and civil rights as the core.

At present, the theoretical circle has reached a certain consensus on the core issue of administrative law, that is, we believe that the theoretical system of administrative law should be reconstructed with the relationship between administrative power and civil rights as the core. Taking the relationship between administrative power and civil rights as the core of administrative law, it should be said that there is not much controversy in the theoretical circle at present, and the degree of understanding is relatively high. Executive power is not an isolated concept. Only when it has a certain relationship with related concepts can it have its substantive significance. In administrative law, administrative power and civil rights are a pair of interrelated categories. In the final analysis, administrative law is also the study of rights and obligations. However, even if the relationship between administrative power and civil rights is recognized as the core of administrative law, it does not mean that there is only one theoretical model. Different cognition and orientation of the relationship between administrative power and civil rights, as well as differences in value orientation and goals, will form different theoretical models.

The first theory holds that there is a "relationship of domination and obedience" between administrative subjects and citizens, which puts citizens in the position of being managed and dominated, advocates their unequal legal status and emphasizes the maintenance of administrative privileges. The theoretical system of administrative law based on these principles is called "management theory". The second theory emphasizes the control of administrative power and the protection of civil rights, and advocates the control of administrative power through legislation, administrative procedures and judicial review. It believes that only by strictly controlling administrative power can civil rights be guaranteed. Its biggest feature is that it highlights the relationship between supervision and administration. We call it "control theory". The first theory is mainly popular in Germany, Japan and other countries with civil law system and countries with planned economy system such as the Soviet Union, while the second theory is mainly popular in countries with common law system such as Britain and the United States. It should be said that in recent decades, Germany, Japan and common law countries have made great progress in administrative law, and they have made innovations in the system, methods, principles, norms and scope of application of administrative law, which deserves our great attention and reference, but we should also see that their theoretical models of administrative law have not changed fundamentally.

Third, we advocate the balance theory of modern administrative law. We believe that all subjects of administrative law relations are dynamic, expanding and dual. Both sides are antagonistic and cooperative, which is the fundamental reason for the development of administrative legal system. Administrative law should not only restrict but also encourage both sides. Of course, under the existing rule of law in China, we should emphasize the restriction of administrative power. The administrative subject should safeguard and promote the legitimate rights and interests of the counterpart, and the counterpart should understand and support the administrative subject's law enforcement behavior, especially through the interactive participation mechanism, to form a harmonious and cooperative administrative relationship pattern. Our theoretical framework is based on this. Therefore, there are at least three models to construct the theoretical system of administrative law with the relationship between administrative power and civil rights as the core. These models are different in value orientation, objectives, standard system, system setting and the scope and requirements of the principle of administrative rule of law.

Thirdly, the originality and value of the balance theory of administrative law.

Is there any other research perspective in the study of administrative law? Are there any other research paradigms or other theoretical models? The answer is yes. The phenomenon of administrative law is complex and developing, people's understanding is deepening, the research scheme of administrative law is diversified, and the theoretical model will never be single. Which theoretical model is more reasonable remains to be tested by time.

However, we believe that the theory of administrative law balance, as a theoretical model, mainly has its unique originality and value characteristics as follows:

(A) the theory of balance provides theoretical support and an important platform for the establishment of benign interaction between the administrative subject and the relative person.

The administrative field between the administrative subject and the relative person is very extensive, and the specific relationship is diverse and very complicated. However, with the development of modern administration, the scope of compulsory administrative acts characterized by "order-obedience" will be reduced day by day, while the administrative guidance and administrative contract acts implemented by negotiation and guidance will be greatly increased. The introduction of incentive rules will greatly improve the benign interaction between the administrative subject and the relative person. According to the balance theory, in order to build a platform for benign interaction between the administrative subject and the relative person, it is necessary to ensure the equal legal status between the subjects of administrative legal relations. From the perspective of China's Constitution, this issue has long been clear. However, many people still think that "administrative law is a public law based on public interests" and "the inequality of subject status is the essential feature of administrative law". We believe that the equality of subject status is an important symbol of modern administrative rule of law. As far as the current social form of transformation in China is concerned, we should first gradually improve the legal status of the relative person and make it an independent subject; Secondly, it is necessary to adjust the functions of administrative subjects and reform the operation mode of administrative power; Third, strengthen the construction of social organizations and enhance their ability to govern the public; Fourth, give full play to the restrictive role of other state organs to ensure that the rights and obligations of administrative organs and the other parties are in a dynamic balance and equality.

(2) The balance theory provides theoretical guidance for the construction of the structural adjustment mechanism of administrative rights (powers).

In the practice of administrative law, due to the influence of various factors, the relationship between the rights and obligations of administrative subjects and citizens is always changing. The optimal equilibrium state is relative, while the unbalanced state is absolute. Balance theory not only innovates in the research methods and theoretical system of administrative law, but also attaches great importance to the research of administrative law system. It advocates building a mechanism to adjust the right structure, clarifying the criteria for evaluating the balance and imbalance of the right structure, and effectively adjusting various factors affecting the balance of the right structure through corresponding means to maintain and achieve a relatively balanced state.

Balance theory holds that an effective mechanism is an important guarantee for developing and maintaining a good administrative law system. Without a good mechanism to adjust the structure of administrative power and civil rights, no matter how perfect the system design is, it can't play a realistic role in the operation. Therefore, administrative law should not only study the system itself, but also study the corresponding mechanism, and realize the balance between civil rights and administrative power through the effective operation of the mechanism.

In the construction of administrative law mechanism, we should pay special attention to the study of incentive mechanism. Establishing incentive mechanism is an important task in the construction of modern administrative legal system, which is determined by the development trend of modern market economy, modern administration and democratic politics. The construction of these mechanisms is closely related to the allocation of power, the setting of administrative procedures and the scope and standards of judicial review.

(3) The theory of balance reveals the unique inequality of administrative law.

The theory of balance reveals the essential characteristics of administrative law relations for the first time, and holds that every specific relationship in administrative law relations is unequal. Under normal circumstances, in the substantive administrative legal relationship, the administrative subject and the relative person form an unequal relationship in which the administrative organ is the dominant subject and the relative person is the weak subject; In the relationship between procedural law and judicial review, another reverse unequal relationship has been formed. Unequal relationship is the most important feature that distinguishes administrative law relationship from other legal relationships in the field of private law. In administrative law relations, the existence of certain unequal relations is necessary, but it does not mean that all unequal relations are necessary and reasonable, nor does it mean that unequal relations of different natures will inevitably form a balanced administrative law relationship.

The revelation of the unequal relationship in administrative law by the theory of balance is helpful to the breakthrough in the rationalization of the allocation of rights and obligations in administrative law. While studying the formation process of unequal relations in specific administrative legal relations, we should also study the necessity of positive unequal relations, the characteristics of unequal relations formed in the process of non-mandatory administrative actions such as administrative guidance and administrative contracts, administrative procedures, reverse unequal relations in judicial review and other related issues.

In addition, it is necessary to further study the difference of inequality in specific administrative legal relations, the internal relationship between inequality in specific legal relations and the balance of administrative law relations, and the relationship between inequality and the construction of administrative procedures and litigation procedures. Combine the study of inequality with the specific institutional arrangements of administrative management, administrative procedures and judicial review to improve the structure of civil rights and administrative power.

(D) Balance theory reveals the essence of administrative procedure.

The construction of administrative procedure system plays an irreplaceable role in establishing and maintaining the balance between civil rights and administrative power, and it is of great significance to study and discuss the essence of administrative procedure. According to the traditional theory of administrative law, the norms of administrative procedure can be the right norms of administrative organs or the mandatory norms of administrative organs. Different schools hold different views and embody different procedural values. This concept hinders the development of administrative procedure theory and the construction of administrative procedure system. Balance theory defines administrative procedure as the manifestation of time and space of administrative behavior for the first time, and according to the situation of both parties, it is considered that administrative procedure law should focus on restricting the behavior of administrative subjects and set more norms for them as mandatory norms. However, the procedural nature of different administrative acts should be different, and the administrative counterpart should also abide by the necessary mandatory norms. This is an important change in the theory of administrative procedure.

According to the balance theory, the mandatory administrative procedure norm is a mandatory norm in nature, and the design of administrative procedure system should fully consider the influence of administrative behavior on the rights of the relative person. However, administrative procedures should not be more complicated and strict, but should be arranged differently according to different administrative acts. Strict administrative procedures should be established for administrative acts that seriously affect the rights of the other party, such as administrative punishment, administrative compulsory measures and administrative licensing, so as to standardize administrative acts and prevent abuse of administrative power; For administrative acts, such as administrative guidance, administrative contracts and administrative suggestions, which will not seriously affect or directly affect the rights of the counterpart, relatively loose administrative procedures should be set up to leave room for administrative organs to take the initiative to administer and fully exercise their administrative discretion.

(5) Balance theory is conducive to the innovation and introduction of administrative methods.

There are many ways to promote the benign interaction between the administrative subject and the relative person, and then adjust the right structure. Balance theory advocates the use of various effective methods to achieve the balance of rights and obligations. This is conducive to the innovation and introduction of methodology. In addition to the traditional historical, comparative and logical methods, the balance theory also studies the system, mechanism and norms of administrative law by means of game and interest measurement.

To some extent, administrative legislation is a process in which the administrative subject and the relative person reach a certain * * * understanding or a certain * * understanding through game theory and rise to laws and policies through certain procedures; Administrative management is a game process between administrative organs and relative persons within the framework of existing rules (legal norms and administrative policies). Balance theory provides theoretical possibility for introducing game method to study administrative law. Game method helps to analyze and solve the dynamic contradiction between administrative organs and private parties, and provides empirical basis for system design and mechanism construction. The introduction of game method is conducive to promoting the fairness and openness of legal norms and administrative policies as rules of the game, to the production of high-quality administrative countermeasures and the improvement of administrative management quality, and to revealing the value orientation of administrative law.

Because public interests and private interests have been fully reflected in judicial review cases, the balance of interests has become a judicial method that cannot be ignored. The category of balance not only embodies the state of administrative power and civil rights, but also embodies a method. In the judicial process, interest measurement is an important method for judges to examine whether the game between administrative subjects conforms to principles and rules. At the same time, interest measurement is also an important method to maximize interests in the process of judicial interpretation and judicial adjudication. This method is being paid attention to and constantly used in various fields of judicial review.

(6) Balance theory reveals the function of administrative law.

The function of administrative law has always been controversial in theoretical circles. We can change from plane thinking to three-dimensional thinking and realize that administrative law should build a platform for the benign interaction between the administrative subject and the relative person. On this platform, first of all, administrative law provides certain procedures and mechanisms for administrative organs and private parties, so that all parties can fully express their interests. To some extent, the expression of this interest appeal can be reflected in a political process, but it should be reflected in an administrative process, which requires the fairness, openness and justice of administrative procedures. Secondly, administrative law should also provide channels and guarantees for the realization of the reasonable interests of administrative organs and relative people. Thirdly, this is a problem of right relief, that is, when the right that the reasonable interests of the counterpart cannot be realized through the corresponding systems and mechanisms is infringed, there should be follow-up systems and mechanisms as the guarantee of right relief. In addition, third, administrative law should not only have the function of representing and realizing the interests of administrative subjects, but also have the function of protecting rights other than the interests of administrative subjects and realizing coordinated development. The function of administrative law should not be simply defined as safeguarding public interests or protecting civil rights. We need to study the administrative process to reveal the highest realistic function of modern administrative law and provide theoretical support for the construction of administrative legal system.

Although the balance theory put forward its own views and promoted the development of the basic theory of administrative law to a certain extent, there are still some problems that need further study. In the future, we should further strengthen the research on the relationship between administrative private party behavior, non-mandatory administrative behavior, market mechanism and government mechanism. Equilibrium theory is an open theory, which is constantly improving itself. The change of theoretical model will lead to the change of the concept, principle and system of administrative law, as well as the change of the value orientation and goal of administrative law. Therefore, we must study it in depth and grasp it as a whole. The research on the basic theory of administrative law must integrate theory with practice, adhere to the guidance of Deng Xiaoping Theory and Theory of Three Represents, seek truth from facts, keep pace with the times and forge ahead.

For example, it pays attention to the study of the right (force) structure of administrative law, and advocates that at this stage, it should emphasize the promotion of the legal status of the administrative counterpart, the rational positioning of administrative functions, the adjustment of administrative power, and the comprehensive utilization of relevant factors to gradually realize the dynamic balance of the right (force) structure, the balance of interests, and the equality of the legal status of the subjects of administrative law relations; Advocate the integration and supervision of administrative relations, adjust the normative system, and form a unified, organic and coordinated administrative legal system; Emphasize the administrative law mechanism of attaching equal importance to constraints and incentives, and attaching equal importance to entities and procedures; It is argued that administrative procedure focuses on restricting "hard administrative behavior", while "soft administrative behavior" focuses on performance, and only requires it to conform to the general procedural principles; Advocate to ensure the exercise of the rights of the administrative counterpart, promote its benign interaction with the administrative subject, and create a harmonious administrative rule of law environment with harmony but difference; Pay attention to the study of administrative legal methods, and advocate that in some decision-making processes, through repeated games between all parties, a broad understanding will be formed, which will be promoted to the national will through legislative procedures; Adhere to the principle of administrative rule of law to lead the whole administrative process, and combine the government mechanism with the market mechanism to realize the balance of the right (power) structure of administrative law; Wait a minute.

What needs to be pointed out here is that I am not the only one who studies the theory of administrative law balance, but an expanding group, which has lasted for more than ten years. The author of this book is an important member who participates in the basic theoretical research of administrative law and has made positive contributions to the theoretical research of administrative law balance. Taking two opposing theoretical models as the breakthrough point, this book makes a systematic, historical and comparative study of the basic theory of administrative law, profoundly explains the basic theory of administrative law, puts forward many constructive critical views on the theoretical state of administrative law in China, and reflects some achievements of the study of balance theory, which has certain originality. As a judge, the author of this book has in-depth observation and analysis of the practical application value of basic theories and has unique opinions. Therefore, this book also has important reference value for promoting judicial reform, improving judicial mechanism and implementing the general plan of governing the country according to law.

Precautions:

1 Professor of Peking University Law School, Chairman of china law society Administrative Law Society.

2 See: (English) CarolHarlow, RichardRawlings, in Law and Administration, on the "red light theory" and "green light theory" of administrative law; [Japan] In the book Modern Administrative Law, Hideo Hotan put forward that "the administrative law system centered on public power has always dominated the traditional administrative law, and now people have questioned and criticized it, and constantly advocated the establishment of new methods" (page 12), China Radio and Television Press, 1993 edition.

The background, historical process and differences of three theoretical models of administrative law, namely "management theory", "power control theory" and "balance theory", have been discussed in some works, and other comrades' related works can also be used for reference. See Luo's On the Balance of Modern Administrative Law, Peking University Publishing House, 1997.

4 See Luo, Yuan Shuhong: Theoretical Cornerstone of Modern Administrative Law, China Law 1993No. 1 issue. Luo and Gan Wen: the category of "balance" and "balance theory" in administrative law, China Law No.4, 1996.

Richard b Stewart, an American scholar, believes that "historically, the fundamental premise of administrative law has always been to limit government rights to protect private autonomy". However, due to the emergence of active administration and citizens' participation, "private behavior and government activities are two completely separated fields". This idea is no longer an appropriate model, and the principle of external control of the government is "useless". He even thinks that "a growing trend is that the function of administrative law is no longer to protect private autonomy, but to provide a political process to ensure that the vast number of affected interests are fairly represented in administrative procedures." See Richard B. Stewart, translated by Shen Yao, The Reconstruction of American Administrative Law, The Commercial Press, 2002, p. 196- 197.