The Reform Of The Jurisprudence On Administrative Law

Since 1950's, the missions and administrative functions of modern nations have changed greatly. Nations are not merely a"police state", but undertake the obligation of"welfare state"; The administrative missions not only include"command-and-control administration", but also tend to"persuading administration","service administration","incentive administration"and"planning administration"; The approaches of administrative activities also present the characteristics of diversification, non-normalization, the non- power and flexibility. The communication activities between nation and society, administrative agencies and private parties mainly establish on the basis of the value of emphasizing flexibility, tolerance and negotiation. But the simple, precise, mighty and close autonomy theories system which is established by traditional administrative law, have not fully describe and interpreter the problems relating to the modern administrative law .Therefore it is necessity to reform or reconstruct the academic theories system of the traditional administrative methods. This thesis analyzes the characteristics and limitation of the traditional administrative law from investigating the development on it. Meanwhile it in details introduces the basic tendency and the updating results in reforming of the theories of the administrative law in Germany and Japan etc. Finally it puts forward the preliminary assumption on reform of Chinese administrative law theory. The thesis is divided into five chapters totally.Chapter one is mainly to introduce the administrative law and the rudiment, growth and formation on it in history. From the compare between the concept of"Rule of Law"in the Common law and"Rechtsstaat"in European law , it shows that administrative law is the output of Continent law's"Formalized Rechtsstaat"and it has barrier to the Common law in some degree. But the administrative law theories are equal to the abbreviation of"Rechtsstaat Theory". Because the Rechtsstaat theory in 19 century includes the value pursuit of profound"state superiority"and"legal positivism", which makes the traditional administrative law theory have a strong authoritarian doctrine color. Otto Mayer was a outstanding scholar in traditional administrative law, he has build the general system of theory of traditional administrative law firstly, and makes profound influence to the following generations.Chapter two mainly analyzes the basic characteristics and limitation of the traditional administrative law theory system. By the analysis it can be drawn that the traditional administrative law is subject to its basic characteristics. First, the traditional administrative law theory lays basis on the dualism of public law and private law. However the premise assumption of the dualism of public law and private law only can realize in the special historical conditions in European continent, but does not a universal and transcendent truth. For the dualism of public law and private law has theories incline to strict distinction in public welfare and private benefit, which makes the compartment of administrative law theory and civil law theories to become closing autonomy theories system. Two kinds of theories do not permeate with each other and develop respectively. To the point of the view, when there is insufficiency in the power protection system which is provided by the administrative law, the civil law has no room to get involved. And, because of administrative law emphasizes the public welfare first excessively, but puts the protection of private benefit afterworld. Therefore the dualism of public law and private law has no actual benefit to protect rights. Secondly, the traditional administrative law theory use administrative act as a core concept. As functions of administrative act, they can become the regulation of nations ruled by law through dieselizing and formalizing to it. But the theory has a clear default for the concept of it makes the complex social life highly abstract and formalistic so as to hard to realize and interpret the actual administrative law phenomenon sufficiently. Moreover according to the logical reasoning of administrative act concept, it makes the administrative law theory stays merely the layer of"Conceptual Jurisprudence"and"Formalistic Jurisprudence". At last, the traditional administrative law theory gives explicit distinction of the dual structure of"inner law"and"outer law"in the administrative law theory and the dual structure of"administration inner relation" and"exterior relation", thus to form"the blank district of rule of law"or "the gap of country under the rule of law".Chapter three mainly introduces and gives a comment to the basic trend of reformation in the administrative law theory after 1970's in Germany and Japan. The reason which pushes the administrative law theory reform is an outside social milieu occurrence graveness change and constitution principle conversion. They result in the traditional administrative law theory, with administrative act concept for core structure as a close public laws system, gradually can't adapt to the daily complications of administrative phenomenon and social diverse benefits conflict. The thesis proves the necessity of reserving the general introduction from the angle of the significance of the law system and the law education. Then it in detail introduces virtuous theories of German and Japanese administrative law general introduction. Although in this period a lot of theories present, their standpoints are different, they all emphasize that administrative law theory should open more and face to a social reality and not contented with the independent academics position of the administration law theories.Chapter four gives detailed comments on two kinds of administrative law general introduction reform theories, which cause extensive concern in the academic circles in recent years of"Administrative process theory"and"Administrative law relation theory". These two kinds of theories not only have deep insight into the problems and limitation of the traditional administrative law general introduction, but also put forward systemically new construction method of administrative law general introduction system to lead the developing tendency of administrative law theory in Germany and Japan on a scale. Administrative process theory mainly aims at in distinction of the dualism of public law and private law in the traditional administrative law theory and the default of the administrative act theories. It lays claim to enlarge the objects and the scope of the administrative law theory, no longer be subjected to the concept and important item of one administrative act, and the static, partial observation of the law effect. It should be observed dynamically and systematically on the basis of actual administrative process to refine the corresponding interpretation theory. The Administrative law relation theory is a model, which is promoted first by a scholar in Germany, empresses through Japanese scholars to develop and perfect. The Administrative law relation theory and the Administrative process theory have homology problem consciousness. However the Administrative law relation theory lays particular emphasis on explanation and evaluation to various benefits relation structure and private concrete rights. Therefore the Administrative law relation theory in comparison with the Administrative process theory is more integrate and systematic in the methodology.Chapter five mainly attempts to put forward the concrete assumption of the reform system in the administrative law theory in our country on the basis of summarizing and absorbing the experience of the reform in Germany and Japan. At first the thesis points out that, because of the"country according to law"in our country just starts to perform, the foundation of law is comparatively weak, so the whole system of the administrative law theory still remains a large amount of influence by the system of the Continent law. But because of the development of ages, the increase of administrative mission and the swift of the role of state, the system of the administrative law theory in our country have to also been carried on reformation and adjustment. This thesis, according to our real country state and the experience developed states, puts forward two reform recommendations: One is to give up the traditional administrative authoritarian thought to urge the establishment of the concept of"equal between administrative subject and private party"; the other is to give up autonomy theories model of the administrative and public law to set up open and responding type administrative law theory system.On the concept of the administrative law, it lays claim to establish the following new concepts by giving up the conservative the dualism of public law and private law :(1) the administrative law and civil law don't be isolated and insulated mutually, but they have a relation structure of propping up mutually, complementing mutually;(2)"priority the public welfare"can not be regarded as an absolute truth in apriorism. It can draw a conclusion by combining with the analysis of publicity in administration according to the discussion of the protection privilege of public welfare and private benefit; (3) The Traditional civil rights theories should be given up. For the definition of civil right, the state of actual social benefit relationship and the items of the basic rights in the constitution should be taken into full consideration, not according to strict legal positivism.On the construction of the administrative law theory, the thesis puts forward that the"system law"theory, the"social system"theory by N.Luhman and"the self- rebirth of law" theory should be used to as a reference to set up an open and responding system of the administrative law theory. Specifically speech, two branch academics should be built up and made perfect: one is the general introduction of the administrative law , which is regarded as an explanation to law, the other is the branch of administrative law, which is regarded as an administrative policy theory. And they are in the reference realm, which depend on each other and promote mutually.