【作者】 亓晓鹏；

【导师】 崔卓兰；

【作者基本信息】 长春理工大学 ， 宪法学与行政法学， 2009， 硕士

【摘要】 行政责任是行政法学一个重要研究范畴。笔者从逻辑区分的角度出发,将法律责任概念分为前提性的义务关系与后果性的责任实现形式,认为行政责任产生的根源在于前提性的行政义务关系,行政责任理论基础的研究对象是行政主体所承担的义务,行政责任理论基础的研究应该从实在法中行政主体的义务出发。社会契约论、人民主权说饱含浓厚的浪漫主义色彩,不能作为重视逻辑分析的行政责任理论及制度的理论基础;以“经济人假设”为前提的公共选择、委托代理理论等古典经济学研究方法过分强调人的自私自利,已受到行为经济学的挑战,其研究结论的真实性与有效性已大打折扣。笔者从权利、义务范畴出发,试图以“行政主体义务本位”为行政责任理论基础。行政主体义务本位指行政法的运作和行政责任的实现以行政主体的义务为本位。此观点让我们明晰行政责任与行政相对人权利保障并非同一,行政责任的范围包括违反保护相对人权益义务、违反行政主体内部高效运作义务及行政伦理义务而受到的制裁,远大于对行政相对人权利的直接保护。行政主体义务本位影响行政违法的解释,行政违法是一种实质违法,侵犯法律规范背后的公民权、政府高效运作以及行政伦理。实质违法的性质有助于我们判断行政实践中很多外表合法但实质侵害相对人权益的行为。行政主体义务本位利于保障行政相对人权利,体现责任政府“以人为本”的价值取向,扩充了我们对行政权力运作的认识。以行政义务出发,行政主体可以灵活选择诸多行政行为方式,从而使行政责任的实现方式也更为丰富。更多还原

【Abstract】 Administrative responsibility is an important part of categories of administrative law, and it has been an common goal of governments all over the world. However, most scholars taked their points on the implementation of the responsibility and building a system, few scholars reseached on the theoretical basis of administrative responsibility. Scholars on the theoretical basis of administrative responsibility taked the Social Contract, the People Sovereignty Theory and other classical economic ideology as the core of this problem, but it lacked exploration of administrative law sense, the lackness of these makes the administrative responsibility issue of research into a miserable state. In this paper, I will establish the concept of administrative responsibility firstly and give a commentary about the current review of the theoretical basis of administrative responsibility on the foundation of the analysis of the theoretical basis by the means of law, and take " Duty Standards of Administrative Organ " as the theoretical basis of administrative responsibility. The full text is divided into three parts:In the first part, a summary of the administrative responsibility and its theoretical basis. In this section, I will establish the connotations of administrative responsibility and its theoretical basis firstly. From the view of of logical distinction, the concept of administrative responsibility will be divided into two part: the duty relationship as the premise and the responsibility forms as the consequence. And the administrative responsibility roots in the duty relationship, so the duty relationship is the study object of the theoretical basis of administrative responsibility. The most distinctive feature of research on the administrative responsibility is the fuzzy definition of the concept. From the maximum protection of human rights, the main of administrative responsibility is the administrative organ included the servants, administrative responsibility means the adverse consequences that administrative organ should afford when they don’t execute their duties. These duties include political duties, economic duties, cultural duties and ethical duties. They are in all kinds of laws. When administrative organ can’t execute these duties, they should afford administrative responsibility. The value characteristics and attribution theory are influenced by administrative duties too. "Duty Standards of Administrative Organ "as the theoretical basis of administrative responsibility can get out of the influence of political awareness, and establish contact betwen administrative responsibility and the operation of law. The study of the theoretical basis of administrative responsibility can be a premise of it’s theory and system, and verify the administrative responsibility problem to a same understanding. About the research methods, I use norm analysis for its adjudication feature.In the second part, the comments of current theoretical basis of administrative responsibility. The current research of the theoretical basis of administrative responsibility based on the Social Contract, the People Sovereignty Theory and some methodologies of economics. The Social Contract and the People Sovereignty Theory based on classical natural law such as Rousseau’s ideas. The Social Contract, as well as the the People Sovereignty Theory is full of romantics, each member’s wealth enjoyed by collective and the individual will of the public have to obey unconditionally. The instability of the "Public Will" content can promote the capitalist revolution, but have the risk of totalitarian. Modern country ruled by law, the administrative responsibility protects the normal operation of the country and society through a solid system of accountability for the legal system, ensures citizens isolate from country, so these theories can not be the theoretical basis of administrative responsibility which have the feature of the logical analysis. Public Choice Theory, Principal-Agent Theory and other economics research methods have opinion that people are selfish, so government officials should be supervised by citizens to prevent them from rent-seeking. However, that economic theory has been challenged by behavioral economics which think people do not always be selfish, so the authenticity and validity of the conclusions have been greatly reduced. As a method, these theories is not appropriate to be a theoretical basis. In addition, these methods contains the methodology of individualism is not in line with the contemporary practice of administrative law.In the third part, the author holds the notion that duty standards of administrative organ is the theoretical basis of administrative responsibility. First, the view of legal point of this research means that right and duty is the basic category, the "Duty Standards of Administrative Organ" refers to the main statutory duties determine the administrative responsibility and reflect the purpose of the setting of administrative responsibility, so it can be the root of this problem. It emphasizes the importance of formal rule of law as a means to secure the realization of substantial rule of law. It has unique qualities to show the distinction between administrative responsibility and remedy for private party rights, explain the administrative violation as real violation of the law and anti-values of acts, fully reflects the government’s responsibility to people-oriented values, and help us understand the complex reality of executive power operation to expand and improve the administrative responsibility forms.更多还原