Research On The Special Power Relation Under The Rule Of Law

The special power relation refers to.that, aims to the specific purpose of public administration, the relation that the related person must act according to the purpose of public management at certain degree, which established by law or administrative action, it also may come into being by itself through entering into the bound of public establishment effect. It is called against the general power relation. However, the administrative government means that the law has absolute control over the administration and the highest influence on it; the relationship between administration and law can convert the relationship between administration and judiciary. Therefore, it will inevitably lead to the conflicts between, in other words, the legalization of special power relation is the inevitable demand of development of the administrative government by law.The subject of the paper is to research on the special power relation under the perspective of the rule of law, and the key point is to analyze questions from the conflicts between the special power relations and the administrative government by law. The paper includes six parts:The introduction part aims to give a whole conclusion for the status quo of present research, it discusses the necessity and inevitability of the legalization of the special power relations under the background of the administrative government by law. Based on it, it provides its own research methods, and meanwhile it shows its own research innovations and the expected research achieved.The first chapter is the general theory of the special power relation. Begins with the concept of the special power relation, it enumerates the types of the special power relation, that is official relation, use relation of public construction (public institutions) and special monitor relation in public law; and then it analyzes the characteristics of the special power relation, and points out it has special rule and special the punishment; eliminating the principle of legal superiority and legal reserve; relative obligations uncertainties and remove judicial review; and based on these, it explores thoroughly the essence of special power relation, that is compulsion and not elimination.The second chapter discusses the statutes quo of the special power relation in Chinese mainland combined with basic condition of our country. First, it analyzes comprehensively historic、systematic and external reasons for the existence of the special power relation in our country. And then, it explains the legislative conditions of the special power relations in our country through empirical analysis and case analysis methods. As for legislation, it focuses on analyzing "the Civil Servant Law", "the Administrative Procedure Law", "the Education Law", "the Discipline for Chinese People’s Liberation Army " and "the Prison Law"; as for administrative rule, it takes students management rule in Wuhan University as an example; for judicatory, it give an example of Fenglv Case in Guangdong.The third chapter mainly analyzes the conflict between the special power relation and the administrative government by law. After analyzing and demonstrating the concept and principle of administrative government by law, it discusses respectively the conflict between the special power relation and legal superiority, the conflict between legal reserve principle and judicial final principle.The fourth chapter mainly focuses on development of the special power relation in foreign countries and legalization problems. After describing the background of the special power relation aboard, it research on the reason and path for the legalization of the special power relation in foreign countries.The fifth chapter is the reconstruction of the special power relation in our country. It give the proposal of reconstruction from the perspective of theory and system. The theory reconstruction includes bringing forward and expatiating thoroughly the legal relation and the special power relation, and system reconstruction contains cultivating and strengthening legal notion, enhancing inner management rule review, enlarging the scope of judicial remedy, establishing judicial precedent system and so on, and in order to solve the remedy problem of the right for related person in the special power relation from both global and local parts to breakthrough the shackle of the special power relation and clear the obstacle in the development of administration government by law, it adopts the methods of breaking one by one to find a remedy way for protection of civil servants, termer, public high school students and members in industry associations, and its ultimate goal is to make its own contribution to realize rule of law in our country.