On The Special Power Relation

The theory of the special power relation can be traced back to the 19th century in Germany. Then it was spread to Japan, Then it was spread to Japan, and then from Japan to the area of Taiwan in China .It is a very important theory in administrative kw .It has a very profound connotation . The characteristics of the traditional special power relation are the following: the application of the principle of reservation of law and of legal administrative are eliminated; the fundamental rights of the counterpart of the special power relation are limited; special rules in the field of the special power relation are not legalized, but they only belong to restricted rules and orders; judicial review can be eliminated and the rights of the counterpart of special power relation to litigate administratively against the administrative infliction. It is not difficult to see that in the traditional theory, me aim of the subject is only to realize special administrative purposes, mat is to say eliminate application of legality. After the second world war, with the need of the global legality construction, this theory was revised repeatedly and it has got full development .The most apparent is that the counterpart of the special power relation enjoy the same fundamental rights as the other citizen, (hat there must be lawful foundation to limit the fundamental rights, and that when the rights of the counterpart are trespassed, they can get the relief of the administrative litigation. These changes apply to the modern democratic principle and the spirit of legality. The revised theory of the special power relation makes that the special power relation is a special relation in administrative kw. As a special relation in administrative law, the special power relation can be defined as the following: based on special causes, in order to reach specific purposes in public kw, one has the privilege over others within certain extend and others have the responsibility to obey .The relation formed in this process is called the special power relation .It is composed of subject, object and content of the legal relations of the legal relationship. In the process of the legality of the special power relation, three basic principles should be followed, they are principle of privilege limitation, principle of due process conformity and principle of legal procedure adherence. Faced with disputes in the field of the special power relation, we should apply Alternative Dispute Resolutions, such as administrative complaint, complaint letter, administrative reconsideration, administrative adjudication, negotiation, mediation and arbitration, coupled with limited judicial review. Compared with the developed administrative kw in Germany and Japan, the construction of the administrative law in China is in the beginning stage yet, there are still some relations that we have no law or no perfect kw to refer to solve. It is very necessary for us to perfect the theory of the special power relation when we introduce it into China.