摘要
法律关系学理在行政法中伴随学科的方向之争而复兴,但与其展现出的功能优势并不相符。行政法律关系要么被作为行政行为的对立和替代,要么被排挤入特别行政法领域,在行政法总论中难获明确定位,在我国行政法上也一直处于备而不用的状态,并未展现出对学科的支配性作用。但无论从实体法还是诉讼法上看,法律关系都已对行政法产生深刻影响,并与行政行为、主观公权利等范畴一起,发挥着行政法学的体系枢纽作用。法律关系学理揭示出行政法旧范畴中的“盲点”,并对传统教义的内部缺陷予以填补和完善,行政法学也因此真正呈现主客观的双重面向。它与学科其他范畴的互动交流,使行政法总论中原本并不相连的单项教义和结构要素,借由法律关系而被统合入一个结构化整体,由此促进了学科体系的统一和行政法秩序的透明。
The doctrine of legal relations has gone through a development process consisting of an early stage,a full-scale incubation stage,and a continuous updating stage.Today,the development of this doctrine is already free from the function of conceptual inspiration and closely connected with the doctrine of subjective public rights,the theory of sources of law,and even the doctrine of the law of modus operandi,and thus presents great richness and complexity.However,compared with its growing importance in foreign laws,the doctrine of legal relations has been in a state of“preparedness but not used”in Chinese administrative law.It regained the attention of academia after the theory of balance was proposed and the study of the rights of the relative person emerged.However,due to the limitations of the study,it had always remained outside of the core scope of administrative law and had not developed multiple facets until the revival of the theory of public rights.The doctrine of legal relations is a corollary of the constitutional changes concerning the State/individual relationship and its cognitive foundations can be understood in terms of the substitution of power relations,the evolving doctrine of status,and the order of equality between the State and the individual.Because legal relations are relations between two or more subjects shaped by legal norms,their subjects,rights and obligations,and normative construction have also been taken as the three core elements of the legal relations doctrine.In systematic arrangement,legal relations are either used as a substitute for administrative acts or sidelined into special administrative law,but these established positions are not compatible with the advantages that legal relations doctrine has demonstrated in the context of complex administration.The doctrine of legal relations provides a framework that is integrative to the overall administrative law order.Its role as the pivot of the administrative law system is reflected in the following aspects:first,legal relations can integrate originally unconnected individual elements of the general theory of administrative law into a structured whole;second,legal relations can remedy deficiencies of traditional teachings and become more closely connected with the traditional administrative law by revealing the cognitive blind spots of the traditional categories such as subjective public rights and administrative acts;third,legal relations expand the research territory of administrative law and enable administrative law research to get rid of the traditional path dependence and stimulate conceptual innovation;fourth,legal relations not only are the analytical tool in many special administrative law fields but also provide the order framework for the new administration;and fifth,legal relations have become a new pivot point even in administrative litigation.In short,legal relations have become an indispensable structural element of the contemporary administrative law system with a significant impact on both substantive and procedural law.
出处
《环球法律评论》
CSSCI
北大核心
2024年第5期72-88,共17页
Global Law Review
基金
2021年度国家社会科学基金一般项目“行政法上第三人的权利保护研究”(21BFX050)的研究成果。
