On The Reasonability Of The Governmental Obligation As The Basic Of The Administrative Law

The obligation of the administrative subject is an important basic category in science of administrative law, but the research on the theme is not sufficient. Scholars ignore its importance and just see it as a marginal legal concept. In author's opinion, it has great reasonability to reconstruct China's administrative law on the fundamental category of the obligation of the administrative subject. First, the true meaning of "civilian right standard" is the supreme authority of the civil rights compared to governmental power. Second, the legal maxim of "governmental power is essential" is a wrong conclusion based on the wrong logic of the social contract theory. Any government should not be the owner of power, it should be people's servant and the bearer of obligation. Third, the current fundamental theories on the administrative law, like balance theory, power-controlling theory, rule of law theory, service theory, and so on, are not revolutionary enough. They haven't pointed out the essence of the administrative law. In author's opinion, the essence of the administrative law is to enforce the government performing its obligation whose beneficiary is people. The obligation of the administrative subject should be the fundamental category of the administrative law. A new model of relationship, in which people is the dominate party, should be set up between the citizen and the government.