摘要
合作行政背景下的行政程序是一种新的行政程序形态。协商民主、反思性法以及公私法融合为其提供了深厚的基础,此种行政程序可以在提升行政权力的民主正当性、行政行为的可接受性以及社会的稳定性中起到重要作用。具体而言,行政程序将朝着以下的方向变革:程序价值的兼容并包、主体结构的伙伴化、程序风格的交往理性化以及程序表达的论辩规则化。基于此,未来在制定统一的中国行政程序法时,在制度选择上需要强化对私人主体承担行政任务的程序规范,重视重大行政决策中的协商式治理,注重合作式行政程序的设计与推广以及程序参与主体在协商程序中的积极义务。
Relationship between nation and citizen is regulated by generalized administration law. So, along with the changing of relationship between nation and citizen, administrative law system has to acclimate with that changing. Deriving from public administrative reformation in the 1970s, Cooperative Governs gradually becomes the well performed key to the government failure of traditional administration thereafter. By now, the new type of administrative state requires a set of administrative law technology, of which administrative procedure is a part. Accordingly, under the background of cooperative administration, the change and trend of administrative procedure turns into a significant academic issue which needs more attention. This paper mainly deals with the following things; What is the impact cooperative administration has on the traditional procedure？ Under the background of cooperative administration, is the administrative procedure justified in theory and practice？ What＇s the direction of its transform？ And how to establish a specific system under the background of cooperative administration？ Cooperative administration has the following impacts on the traditional administrative procedure： Firstly, the relationship between citizen and government going to be polarization and equal-oriented administrative legal relationship with service-cooperation which has take the place of high-powered administrative relationship with order-obey. And the coercive component in the traditional administrative procedure is reduced. At the same time, autonomy is ascending. Secondly, because of the preceding polarization, the scope of the administrative procedure law must be expanded. It manifests as more private subject should be regulated by administrative procedure. While traditional procedure law could not cover the private sectors who take part in the administrative duties with government as the new one. Thirdly, inherent closed structure of the traditional procedure could not deal with the diversification of in
作者
喻少如
gu Shaoru(Southwest University of Political Science ＆ La)
出处
《武汉大学学报（哲学社会科学版）》
CSSCI
北大核心
2017年第2期111-120,共10页
Wuhan University Journal：Philosophy & Social Science
基金
国家社会科学基金一般项目(14BFX091)
西南政法大学科研项目(2013-XZRCXM008)
关键词
行政程序
合作行政
反思性法
变革
走向
administrative procedure~ cooperative administratiom reflective law~ reform
trend
