社会治理新模式与行政法的第三形态

社会治理新模式与行政法的第三形态

New Model of Social Governance and the Third Form of Administrative Law

    期刊名称：《法学研究》
    期刊年份：
    作者：江必新,邵长茂
    单位：中南大学教授;中南大学政治学院
    中文关键词：行政法的形态;社会治理模式;公共行政权
    英文关键词：administrative law;form;social governance;public administrative power
    中文摘要：
    基于外部环境及自身理念、结构、功能的变化导致的不同外观，现代行政法在中国的发展历程可以概括为三种形态。以“自由权和社会权-公共行政权”为主轴的第三形态，因应“党委领导、政府负责、社会协同、公众参与”治理新模式的产生而产生，通过国家任务、行政主体以及行为方式的社会化得以建构，并对发展和突破现有行政法制及理论提出了要求。
    英文摘要：
    Based on the different appearances caused by the changes of the external environment and its notion, structure and function, the development of modern administrative law in China can be divided into three forms. The first form can be summarized as “state administrative power-liberty rights”, and the second as “liberty and social rights-state administrative power”. Adapt to the new model of social governance, the third form can be summarized as “liberty and social rights-public administrative power”.The changes of the forms of modern administrative law in China reveals the law that administrative law has evolved through the alternate extending of the right protection range and the power subject structure. Now, modern administrative law in China has completed the change from the first form to the second, and it is in the transformation to the third form. No doubt, the third form is not the final form. In the near future, other rights such as political rights and development rights will be included into its scope of protection. The scope and structure of administrative law subject will be more diverse, and the ways of administration will expand. These changes will create the conditions to shape the future form of administrative law.The new mode of social governance which can be summarized as “party committee leading, government undertaking, social coordinating and public participating” is the response to the conflict between the service-oriented government and limited government. The purport of constructing the third form of modern administrative law in China is to adapt to the new model of social governance and provide legal support to it. With the socialization of national task, administrative subject and behavior style, the third form is forming, which brings new challenges to administrative law and its theory. The government in the third form can be regarded as the fusion of the service-oriented government and limited government. In addition to the government, the administrative subjects should include authorized subjects and other organizations with the public affairs management functions. On the basis of the traditional administrative legal relationship, the scope of judicial review should be extended. In order to reduce the risk and cost of socialization reform, the government should take security obligations and supervision responsibilities.
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