Cooperation Administrative Law

At the level of political philosophy, theoretical basis of contemporary Chinese administrative law is facing enormous challenges. In order to build a solid theoretical basis of administrative law, it's necessarily to reconstruct the system from political philosophy to the philosophy of law and then philosophy of administrative law. The biggest dilemma of contemporary political philosophy is the value conflict which known as "Clash of the gods". The way to eliminate subjective conflicts is to find objective basis of value consensus, and this is the foundation of cooperation. The key point of cooperative political philosophy is that the highest value of modern politics to promote the social cooperation at utmost, to enhance the level of social cooperation, and to ultimately facilitate the survival and development of social competence. Cooperative political philosophy lays the foundation for cooperative law philosophy, and the core issue is: neither rights should be the final-oriented goal of law, nor should obligation be the goal, but cooperation should be the final-oriented goal of law. Cooperative law philosophy lays the foundation for cooperative administrative law philosophy, and the core issue is: the highest value-oriented goal of administrative law is to establish, guarantee and repair the symbiosis between “the government and the governed”; this view is the "Cooperation Theory". The theoretical system of administrative jurisprudence which based on the cooperation theory is defined as “cooperative administrative law”. Except the introduction, the full text could be divided into six parts.The introduction consists of two parts, the first part shows the analysis of the origin of the problem and significance of this thesis topic in detail, to tease out the core issue need to be addressed; the second part makes a systematic summarization on the existing research methods of jurisprudence, and figure out the “methods package” on the basis of those methods.The first chapter is entitled "Reviewing the Basic Theory of Traditional Administrative Law". This chapter firstly sorts out the traditional doctrine of administrative law, and summarize "management theory", "power control theory" and "synthesis theory" into three camps from the perspective of the value theory, and then domestic and international schools and theories will be teased out; Secondly, the doctrine of the three camps will be reviewed, and the review is on two levels that “what is the basic theory of administrative law" and "administrative law should defend what value" and a detailed analysis pointed to the value traps of management theory, the blind spot of control theory and the confusion of synthesis theory.The second chapter is entitled "Cooperation on the Basis of Political Philosophy". This chapter first proposed the reconstruction idea of two administrative law philosophy: firstly, the conversion from the confrontation mode to unified mode; secondly, the conversion from the subjective value analysis method to the objective value analysis method; second, the analysis on the root of theoretical plight of political philosophy-- "Clash of the gods", combing the history of academic thought to try to crack the puzzle of the theory; third, the theoretical proposal called "cooperative political philosophy" was raised from the perspective of objective value theory: modern politics should promote community cooperation to the greatest degree, enhance the level of social cooperation, all help to promote and expand cooperation between the virtuous society is rational and just, on the contrary, all is not conducive to the promotion and expansion of benign social partnership is unreasonable and unjust; and finally the analysis on cooperation thinking of Chinese traditional political philosophy.The third chapter is entitled "Philosophy of Law on the Basis of Cooperation". This chapter begins with "Cooperation Political Philosophy" as the theoretical premise, to extract the theoretical core philosophy of law cooperation: Law is set to defend, indemnify and repair norms of human cooperation relations in general. neither rights should be the final-oriented goal of law, nor should obligation be the goal, but cooperation should be the final-oriented goal of law: all help to promote and expand cooperation between the virtuous society is rational and just, on the contrary, all is not conducive to the promotion and expansion of benign social partnership is unreasonable and unjust; acts which are beneficial to the behavior of social cooperation, the law should support it, all is not conducive to social cooperation, the law should prohibit it; secondly, trace back from ancient Greek philosophy to thoughts of modern law philosophy, and sort out the dark line of cooperative legal philosophy behind traditional philosophy in two aspects of "source" and "flow" generally.The fourth chapter is entitled "Cooperation Theory: Introduction of Basic Theory of Administrative Law", which occupies the core position. First, this chapter starts from "cooperative law philosophy," gives a detailed analysis on the two propositions which are entitled "the relationship between the government and the governed is a cooperative relationship", " the relationship between the government and the governed is a substitutive cooperation relationship ", and establish theoretic logics of “Cooperation Theory”; secondly, use the core concept of "substitutive cooperation relations" analyses comprehensively on the relations of six public law(the relationship between the people and authorities, the relationship between the authorities and the government, the relationship between government and the administrative counterpart, the relationship between government departments, the relationship between the executive and the public service and the relationship between the court and the government) to proposed the core topic of "Cooperation Theory ": Essentially, administrative law is to establish, guarantee and repair the substitutive symbiosis between "the government and the governed". And this general proposition is divided into three sub-propositions: 1, Administrative Law is to build substitutive cooperation relationships between “the government and the governed”; 2, Administrative Law is to guarantee substitutive cooperation relationships between “the government and the governed”; 3, Administrative law is to repair substitutive cooperation relationships between “the government and the governed”; finally, further analysis is presented in two aspects of the theoretical advantages of “Cooperation Theory ".The fifth chapter is entitled “Applications of Cooperation Theory in the Basic Principle of Administrative Law". First, this chapter divides legal principles into " legal principles as the guiding principle " and " legal principles as a special standard ", and conduct reflection and review on the fundamental principles of administrative law doctrines in accordance with this classification and its inherent theoretical; secondly, presented in " the basic principles of administrative law as the guiding principle of " should establish "acceptable principles", in " the basic principles of administrative law as the guiding principle of " should be introduced in the "convenient principle" point of view, and hope that through this introducing formed borne by the rule of law "basic rules and guidelines", shall be borne by the principle of rationality "loophole added," bear discretion controlled by the principle of proportionality, bear the "exception created rules," the basic principles of the group consisting of convenient principles.The sixth chapter is entitled “Applications of Cooperation Theory in the Basic Principles of Administrative Law ". First, through the analysis, it discovered that the development path of future system construction of the administrative body should be a public-private partnership model, this public-private partnership model showed a polycentric pattern of the administrative body. Administrative cooperation system emphasizes that private administrative body and the executive body of should become the formation of highly related to each other, the deep interaction and effective cooperation relations. The legislative practice case of “big data management center of Nanjing Jiangbei New Area” states that the promotion of legal institutional reforms conducive to the formation of highly related to each other, the deep interaction and effective cooperation relations between the government and the governed. Secondly, it noted that the core function of administrative litigation is to repair the substitutive cooperation relations between the administrative body and administrative counterpart. Repair substitutive cooperation relations not only in need of relief claimed, but it also need to repair trust. Ways to repair trust are cognitive intervention and emotional intervention primarily. The main method of cognitive intervention is that let the administrative body and public servants as a co-defendant in administrative proceedings, so that the negative public perception due to the irregularities of public servants, to establish a "firewall" for the credibility of the government organizations. The main method of emotion intervention is, adding the decision of apology in the administrative proceedings as an auxiliary judgment way to reduce the level of negative emotions of victims, therefore, to lay the foundation for the restoration of trust.