转型政府与行政法治

四十多年的改革发展史就是一部中国行政法治的变迁史。以政策追踪分析的方法，可将中国行政改革分为四个阶段，相应地，行政法学也经历了四个转型：第一阶段是“精兵简政”改革，是行政法制的初创期，效率价值主导了行政法学研究；第二阶段是“职能转变”改革，在这一阶段，控权理念占据依法行政的核心要义，形塑了以行政行为为支点的行政法学体系；第三阶段是“公共服务”改革，拓展行政活动的形式，在平衡论与控权论的论辩中探索行政法学基础理论的根基；第四阶段进入国家治理改革，补强民主正当性的实质法治路径受到青睐，新行政法学研究提上日程。历史发展的脉络表明公法研究必须深植本国背景。唯有理解当下并预判未来的政府定位，才能经由法释义学方法而发展出契合国情的行政法治。

The Reforming Government and the Rule of Administrative Law

Unlike stable formulas, the model of rule of law keeps changing along with science and technology development, economic transformation, as well as cultural blending. The rule of administrative law, to be more specific, presents its dynamics towards the functions of administration with the shift of national mission. The path of history reveals how the rule of administrative law internally responds to the national mission. With this clue, it helps to understand the emergence, development, and transformation of administrative law in China when chasing back the changing course of the rule of administrative law. The history of reform and development is also the transformation of the rule of administrative law in China in the past 40 years. With the method of policy tracking analysis, China’s administrative reform can be divided into four stages, which exactly corresponds to four transformations of administrative law.In the first stage, the reform of “simpler administration”, intended to simplify staff, abolish or merge institutions. In order to consolidate the effectiveness of the reform of this stage, the National People’s Congress and its standing committee passed a series of acts of organizations. Hence, the study of administrative law started to thrive. In this stage, the pursuit of clear departmental power and responsibility and higher administrative efficiency could be traced in academic works. For an instance, the expression of the division of work and efficiency in administrative management can be found in specific argumentations in administrative law research.In the second stage, the reform of “functional transformation”, both the clear concept of the socialist market system and the reform of administrative functions based on system transformation had put forward new challenges to the administrative law in China. Overseas basic theories and system design, dominated by the idea of power control, became a shared perception in the field of administrative law in China. The context of law-based administration presented a more obvious stance of right protection. The power control idea of administrative law has been deeply rooted and administrative law system based on administrative actions has been shaped.In the third stage, the reform of “public service” expanded the forms of administrative activities. Comprehensive and flexible administrative functions are required by the socialist market economy in China. Especially, the concept of service-oriented government, put forward in The Report on the Work of the Government 2005 by the State Council, set the tone for the later governmental innovative management which integrates management with service. The argument among management theory, power control theory and balance theory stimulated the first systematical discussion on the basic theory of administrative law in the circles in China. There from, the administration turned to “responsive model” from “repressive model”. The reform of administrative functions reconciled the differences on the true value of administrative law among scholars, whose works later focused on the new administrative activities in the context of service-oriented administration.The fourth stage is the reform of national governance. The reform of the administrative approval system has become the key point of promoting national governance and realizing positive interaction among government, market and society. In the situation of such a co-governance, the legal effectiveness based on traditional representative democracy, legalization model built by the public bodies, as well as the discretion and its regulation have been reviewed. The method of utilizing the substantial rule of law to strengthen the legitimacy is preferred, while the study of new administrative law becomes a fresh development trend. Though, the development of rule of law in China is just on the rise, facing the same trend in the context of globalization and domestic administrative approval reform. An increasing amount of works in the field of administrative law, expressing the concern whether the rule of law in pure formalism can be the protector for the reform, are trying to explore the rule of law in substance, beyond the one in formalism, in ways such as seeking substantive consensus or justifying authority by the procedure.The history of the development of administrative law since 1978 has witnessed the shift of the theory system of administrative law, the change of the value in the field and the move to substantial rule of law, which is not only a struggle history of how Chinese administrative law scholars built the basic theory and academic discipline system, but also an interaction history of how administrative law responded, interpreted and boosted the administrative reform. In the context of historical development, the study of public law must be rooted in the background of the country. Only by understanding and predicting the current and future government tasks can we develop the administrative rule of law in accordance with the national conditions through the method of legal dogmatic.