On The Criticism And Reconstruction Of The Special Power Relationship Theory

Starting from the concept and the sort of special power relationship, this theses has provided a brief review of the creation, development and evolution on the traditional theories of special power relationship. In the light of the actual situation of China's mainland administrative law, abiding by the objective and dialectic attitude and adopting the basic concepts on the relationship of power and administration, legal and administration, the basic theory of discretion and so on, this article critically develops the useful and discards the useless of the traditional theory of special power relationship, and at the end, discusses the reconstruction of the special power relationship theory.Specifically, with the constitutional idea tilting to the interests and rights-based society and under no exception in the Constitution, the traditional theory of special power relationship empirically exclusing the rule of law was obviously incompatible with modern society. This is a big flaw. However, from the relationship between the power and the executive, the administrative and the legal, the special power relationship as a special society relationship, also expresses its objectivity. Therefore, to the traditional theory of special power relationship, abandoning it absolutely is not right approach. In fact, the concept of special power relationship has accounted for it is actually a "goal-oriented administrative system" and is close to the theory of administrative discretion. Such inspection perspective transformation provides a particular way to build a new type of power relations theory. Accordingly, From both theoretical construction and the ways to achieve to discus the reason of "why free from review" and to improve the content of the theory of special power relationship are the final destination of this writing.Based on the above, The role of this article is to manifest such a proposition: Recognized the objectivity of special power relationship, and at the same time required to have the sublated attitude to the traditional theory of special power relationship. Recognized Modern society did not allow any party to unlimited power, at the same time a starting point to interpretating the relationship between judicial review and the special powers has been needed. This point is the theory of the administrative discretion. From these, we can arrive the purpose of building a new theory of special power relationship.