| Aiming at regulating private participation into administrative tasks, the dissertation set the research framework based on the three elements of internal structure of administrative regulations:facts constitute, legitimate elements, and legal effect. In order to achieve the effective regulations for participation into administrative tasks, the dissertation need to answer how to extend the facts constitute","how to establish the legitimate elements","how to perfect the legal effect" of these three questions.The construction of administrative regulation of private participation in administrative tasks, can not be completed in the framework of traditional administrative law, functional limitations of traditional general administrative law needs to be a breakthrough; and it can not be completed by give new legislation in reality the normativity without carrying out checks by general administrative law. If these empirical, descriptive knowledge without the review and reflection of administrative law system, and directly regulate public administration, the administrative law will become a Sociology which descripes reality, it is difficult to achieve the hope that through the construction of political system to achieve the value of human beings like democracy and rule of law. Therefore, new measures in some special administrative area need to pass through the general administrative law review in order to obtain general normativity.This article, from a new awareness of the problem of the traditional administrative law, critically reviews the traditional administrative facts constitute, legitimate elements, and legal effect in the regulation of private participation into administrative tasks, and puts forward some improvement measures. The dissertation guided with administration law application theories, and the conclusion of the research didn’t only focus on the specific regulations of administration law, it is also a practical theory which has universal significance for the whole system of Administrative Law. Therefore, this paper presents some new problems which are different from the traditional administrative law and other social science, so this paper is to improve the administrative law, rather than the interpretation for traditional administrative law, or description which may be a destruction of general administrative law.Chapter One "Introduction":This chapter combined with Chinese reality, and differentiates the organizational forms of private participation into administration into "private of independent organization","private of independent authority" and "private of non-independent", meanwhile differentiates the behavior of private participation into administration between formalized administrative act and un-formalized Administrative Act.The chapter reveals both a large number of complex phenomena of private participation into administration and the shortcomings of traditional administrative law, to find the problems that calls for immediate solution of effective administration regulations to private participation into administrative tasks in China, in other words, this dissertation not only aims at improve the individual legal system and its interpretation, but also requires the creation of a new mode of administrative regulations. All kinds of new regulations created by administrative law to regulate private participation into administration tasks eventually pay close attention to construction and application. Therefore, the dissertation use the legal theory to analysis the division of the normative structure of administrative law, and explores how the administration law can be effectively applied to private participation into administrative tasks by reforming the facts constitute, legitimate elements, and law effects of administration regulation one by one in later chapters.Chapter Two:’The legitimacy&normativity On Private Participation Into Administration’. By applying the methodology of state science and cooperative state model, the author proves the legitimacy and normativity for private participation into administrative tasks, thereby, the author demonstrates private participation into administrative tasks, of which contradicts with traditional administrative law or of which are beyond the regulation of traditional administrative law, should not be simply judged as violation of law or being unrestrictive from administrative law, but reformation on traditional administrative law is needed to construct administrative regulations which applies private involvement into administrative law.In this section, the author later points out in traditional administrative law, the adoption of the abstraction of facts constitute, formalization of legitimate elements, and law effect depending on judiciary supervision, which result in inefficiency in regulating private participation into administrative tasks, and attribute the lacking of a complete proposal on administrative law’s regulation on private participation into administrative tasks from administrative law or administrative jurisprudence to subsumtion model as the only administrative law application model, neglecting diversified development of administrative law application model. Subsumtion is one of the application for administrative law, and subsumtion model is one of the applicable model for administrative law. Administrative jurisprudence needs to construct more available application models, and construct new administrative regulations in new application models.Chapter Three:’The Expansion of Facts Constitute for Administrative Law:the Definition of Administration by Private.’In this part, the author asserts administration by private should be legitimized as facts constitute for administrative law to regulate private participation into administrative tasks. However, the definition of administration by private should not be confined to the frame of subsumtion model. If administration by private were defined as an abstract concept, it would be of little possibility for the concept to cover private participation into administrative tasks without’hoheitsrechtlicher Befugnisse’, and, meanwhile, to effectively differentiate administrative tasks and private affairs. Therefore, to construct the facts constitute for administrative law to regulate private participation into administrative tasks, we should breakthrough the limit that facts constitute only comes into being in the form of an abstract concept.Therefore, the dissertation proposes that administration by private can be modeled as type, and type can be used as facts constitute in administrative law Nevertheless, Type is different from abstract concept, though type still represents facts of a case via describing characteristic elements. But in type, exhaustive enumeration is not adopted. Type is not a simple combination of isolated abstract features, but an’overall image’, in which a variety of characteristic elements are combined on a certain value basis, i.e., the referent of a type doesn’t necessarily possess all characteristic elements of the type. If the facts of a specific case are concluded based on a certain kind of value judgment, and the facts conform to the overall image a certain type represents, it can be said that the facts of the case are eligible to the type, though the facts may only possess some of the characteristic elements.Type of administration by private, which takes administrative task as the core element, is comprised by three elements as follow:administrative task, private, connection between private and administrative task. This dissertation aims at constructing administrative tasks into a type which consists of five elements:regulations, actual participation, constitutional order requirements, social needs, and financial affordability, meanwhile, the core element for type of administrative task is constitutional order requirements rather than regulations. It indicates that facts of a case can conform to type of administrative task even if it doesn’t possess all five elements. Facts of case beyond regulation can be justified as administrative task on the condition that there is actual administrative participation, and the executive power of administrative rights is under the requirements of the Constitution and derives from the Constitutional order. Accordingly, administrative organs should construct administrative model which conforms to type of administration by private under the constitutional order according to specific situations, and the above mentioned elements of type of administration by private, which forms a specific combination according to a certain value or purpose, will be regulated by administrative law, for they conform to type of administration by private as facts constitute of administrative law.Administration by private with private participation in administrative tasks can be established into a type with administrative task as the core, which also works as facts constitute for administrative law to regulate private participation in administrative tasks. Thus, all cases related to private participation in administrative tasks can be regulated by administrative law, while avoiding mistaking civil affairs for administration by private. But the application of value judgement is restricted in scope and condition; otherwise the applicable process of administrative law is completely into the subjective will. So the application of type also needs at least two conditions, one is compatible with the general administrative law; the two is its complete system construction.Chapter Four:’The Discretionally Legitimate Elements:The New Regulation Model of Administrative Law to Administration by Private.’The discretion model composed of non conditional norm form, to make administration have the authority to constitute legitimate elements according to specific facts, and achieve the application of systematic regulations to type of administration by private through value judgment.There are two differences between subsumtion model and discretionary model, one is the discretion model is no longer formalization of legitimate elements, another is discretion model’s legitimate elements are constitute by discretion. The former refers to the new construction methodology of administrative law, the latter point to the new application methodology of administrative law. Through the construction of these two aspects, discretion model will complete the following three tasks:first, make the administrative law allow administration by private; second, make the regulation of administrative law contains other normative orientation guide administrative task effectiveness; third, ensure the realization of the principle of rule of law. The process of systematic regulations is not only a Syllogistic logic, but also a balance of cooperation in multiple elements of regulation via value. Therefore, value judgment should be the necessary and sufficient condition of effective administrative regulation which should be brought into methodology of Administrative Law. In the aspect of legal effect, in order to ensure the legal effect of systematic regulation, we should pay more attention to the control of administrative organization law and the administrative to administration.Chapter Five:’Administrative organic law of the administration by private.’At the core of traditional regulation system in the administrative organic law lays’Befugnisnorm’. German administrative law create the’Beleitung’ to delegate the’hoheitsrechtlicher Befugnisse’to private. Incorporating the private who exercise the’hoheitsrechtlicher Befugnisse’, the private is subject to the supervision of the traditional administrative law. In order to supervise such private, it is no necessary to confine to the methodology of the subsumtion function though which the administration by private has been’Publifizierung’ again. The defects of the traditional system can be concluded as follows:First, as the legislation can’t catch up with the development of the administration, the private administration which the law does not provide can not be adopted by the administration. Second, expressing concern only on the connection between the legal form of the administrative organization and its legal affect from outside, and without considering the significance of the legal form of the administrative organization, the administrative organic law is just a medium to transmit the outside legal affects, neglecting the law’s function to play a role in supervising though affecting the internal structure of the organization.Guided by the methodology of the subsumtion function, the administration by private can be dealt with legal systems the administrative law creates newly, which include the level of legitimacy, the’Verwaltungsgesellschaftsrecht’, finacial supervision and so on. On the concept of the model of discretion, those systems do not have the subsumtion function. That means, without setting the exact provision relating to the organic characters of the administration by private, the administration is permitted to build the concrete organic structure that will prompt the completion of the administrative task. As regard the administrative organizations which can’t be regulated in terms of their form characters, a more adaptable regulation model is adopted by the discretion model, which factually impact the administrative organizations though having influence on their internal structure, result in increasing administrative efficiency together with regulating the administration by private by the purpose of task.Chapter Six:’Administrative act law of the administration by private.’The traditional mode used by the administrative act law to regulate the administrative act, classifies the administrative activity into the form system of act provided in the administrative law, and results the specific legal effect through subsumtion. So, the traditionally administrative act law can only regulate a few administrative activities which can be subsumtion by the administrative act. The scope of the administrative activity adopted by the administration is larger than that of administrative act. The administrative law doesn’t abstract uncategorized administrative action and incorporate such act, whose best illustration is the completions of the administrative tasks by the act of private law, into the act form system of the administrative law which also dose not allocate corresponding legal effect to those act.In order to deal with the defects the traditional administrative law have when it regulate the private law act to complete the administrative tasks, there are two methods which can be selected by the administrative law. First, one could categorize the uncategorized administrative act. Second, one could keep its uncategorized character, and allocate corresponding legal effect to those acts. In the paper, I argue that both of the two methods can be used to enhance the effects of the administrative act law to regulate the administration by private. Different method should be utilized, in terms of its actual affect, to deal with the different administrative activity. In the view of the discretionary mode aims at reaching the administrative purpose, the author of the paper tries to criticize the two level theories and the private law theory of administration, both of which have been used to regulate the private act to complete the administrative tasks. In the end, the author will try to clarify the scope within which the theories can be used and the function limitation of the theories which will be improved by the proposal offered by the author. |
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