Negotiating Administration:a New Paradigm Of Administrative Law

The modern administration has converted to democratization, privatee-operating, procedure and efficiency, making cooperating administration featuring in equality, interaction, compromise and consensus sprung up, such as consultation on regulation, administrative decision-making, license, command and dispute and antitrust enforcement, which has shaken the foundation of traditional administrative law, which has been in crisis and unable to explain the widespread negotiating administration, characterized by inequality and unilateral. Therefore, the introduction and integration of Kuhn’s "paradigm" theory into traditional administrative theory is the only choice.Considering the cognitive, forming and developing function of paradigm, it could be used as an important tool in studying negotiating administration both theoretically and practically. First, paradigm can be used to research on negotiating administration from macro level, abstract basic category of the negotiating administration, form the theory of "concept-judgment-reasoning", and provide unified cognitive method, standard and model for new administrative phenomenon. Second, paradigm can attract researchers with the same interest and faith engaged in academic research about negotiating administration, expanding territory of administration and promoting the development of administrative law. In fact, Kuhn’s "paradigm" was not obscure as most people declared. He only explored the original meaning of paradigm-model, and applied it in the field of history of philosophy of science creatively.Kuhn thought paradigm was a kind of widely recognized scientific achievement, which constituted a model to guide routine science. In addition to the integrity of the theory, a scientific achievement must meet two requirements if it were called paradigm:First, it must be supported by sufficient theory and practical experience; second, it must be able to solve "abnormal phenomenon", which could not be done by traditional model.Although Kuhn’s theory of paradigm is mainly used in natural science, especially in physical revolution, but it can also be applied in social science, such as politics, sociology, and administration. However, social science is different from natural science, the integration of Kuhn’s theory of paradigm can’t be flawless without being modified. Different from the natural science, the paradigm of social science, including administrative law, featuring in multi-level, multi context, and compatibility.As the scientific achievements of administrative democratization, negotiating administration has become a new paradigm different from traditional administration and administrative participation. First, negotiating administration featuring on equality, participation and consensus, which is different from traditional administration? Second, the theory of inter-subjectivity, negotiating democracy, governance and balance provides theoretical basis; change of state task, need of proper regulation for administrative discretion, and transformation of contemporary public administration provides a solid foundation; administrative legislation, administrative law enforcement, administrative relief provides a large amount of cases. Third, compared with the traditional administration, negotiating administration can not only resolve the plight of legitimacy, but also improve efficiency, which shows great advantage.A new theory would bring advance to a subject and be confronted with traditional ideas.In the face of negotiating administration,traditional administrative has already challenged it with its own principles. However, in the context of administrative nation, the principle of administrative right can not be on one’s discretion has already collapsed. In fact,it is the pursuit of multiple interests which makes negotiating administration necessary. It is undeniable that, there are limitations about the paradigm of negotiating administration, mainly embodied in the inequality of negotiating parties, the burden of negotiating and decline in public administration and fairness,which can be resolved by certain rules.A paradigm must be supported by systematic theory, which has to be learnt for truly understanding the meaning of a paradigm and using it as a tool in practice. As a new paradigm of administrative law, the elements of negotiating administration including the relationship of administrative law, legal status of participants, the administrative process, administrative methods, principles, administrative procedure, effectiveness, the applicable scope and links with traditional administration. The legal relationship of negotiating administration is built on equality and participation. The process of negotiating administration is a complex combination of mutual understanding, communication and compromise, especially emphasize equality, openness, integrity as principles, taking interests as the basic method. The procedure shall be focused on communicative rationality and tolerance on participants. Effectiveness of negotiating administration includes two aspects:internal effect, binding both sides, and external effect, which can be sued in court. Negotiating administration has its applying field, when it is unable to reach administrative goal, traditional methods have to be applied.Administrative law is different from country to country; the paradigm of negotiating administration must be based on China’s administrative ecology. The support from constitutional norms, political consultative system, failure for the ban of negotiating in administrative cases, negotiating orientation in Administrative Reconsideration Law and State Compensation all provide resources. The paradigm of negotiating administration in our country consists of changing mandatory methods, get rid of obstacles, reconstruct the system of hearing and strengthen the construction of civil society.The emergence of paradigm of negotiating administration will have a structural influence to China’s administrative law, which will improve the transformation of the thought, innovation of the theory, change of the system, and will promote China’s administration to "administrative republicanism".