【作者】 卢剑峰；

【导师】 刘志坚；

【作者基本信息】 兰州大学 ， 行政管理， 2010， 博士

【摘要】 行政决策法治问题是新世纪以来中国执政党和中央政府高度重视的一个课题,该研究的现实意义在于培育现代行政决策法治观,构建现代行政决策制度与机制,推进我国政治文明建设；学术意义在已有研究基础上进一步探索有关行政决策的参与式民主法律机制理论,是拓展我国行政法学研究视角的一个尝试。本文确立了行政决策法治化的发展思路。即以行政决策民主化带动行政决策法治化。这与学界普遍认为以法治化带动民主化的认识不同。民主化先行的主张基于两个方面的现实考察,一是“维权式民主”普遍兴起,公众参与行政决策维护自身权益的表达日益强烈,政府也开始建立一定的利益沟通机制；另一方面,一些基层政府主动吸纳公众参与重大决策,激活了体制内的民主要素。破解行政决策合法化困局可能是以参与权抵制决策权的腐败与滥用。参与式民主启动行政决策法治化,应解决高度参与与低度制度化之间的矛盾,为此制度建设要跟进。在制度建设上,以行政分权(纵向方面,中央和地方分权；横向方面,政府与社会合作)和公众参与为主要内容,建构多元多级的行政决策主体制度模式。行政决策体制牵涉党政关系和政府人大关系。推进党政职能分开的改革,让行政决策回归政府；提高人大决策权威,履行好人大重大事项决定权。规范中国共产党决策与政府决策的关系以及人大重大事项决定权与政府决策的关系,形成相互协调、相互制约的良性互动关系,是行政决策法治化的重要内容,同时也是一项挑战性和长期性的任务。因此,本文认为行政决策法治化取渐进主义道路。本文确立了行政决策法治化的发展目标。即形式法治与实质法治相统一。“综合法治观”主张以民主作为决策程序,公众有效参与,直接维护自身合法权益,行政决策内容从经济至上转向公平优先。这一目标既针对行政决策的形式合理性,也针对价值合理性,还兼顾行政决策效率。这一问题也是首次得到论述。在制度建设上,确立正当行政决策程序,涵盖决策提议、决策公开、决策听证、决策评估等环节,包括告知规则、听证规则、文书阅览规则、说明理由规则等内容的建设。本文确立了行政决策法治化的动力模式。行政决策法治要依赖政府推进和社会推进相结合,即“互动结合论”,这一动力模式在认识论上突破了期待权威政治转型的单一思维的局限,也纾解了社会和谐的压力。主张积极推动建立政府-社会良性互动的结构。因为中国的公民社会不具有与政府的对抗性,而是一种合作的关系。当下重要的是制度供给，解决社会团体发展上的法律空白问题。监督制度上,主张以社会监督推动国家监督,为人民群众监督创造条件,通过体制外民主力量“倒逼”体制内法治框架,使国家监督和社会监督良性互动。建立人大督查专员制度,对重大行政决策实施违宪审查。责任制度上,主张建立以过错推定原则为主,以公平责任原则、过错责任原则、违法责任原则为补充的归责原则体系,对外由行政决策主体承担责任；在内部以过错责任原则,追究决策者个人的责任。同时,应看到公民社会在推进决策法治上的有限性,主张政府主导推进行政决策制度建设和决策体制再造。温岭民主恳谈及宁海等地的实践提供了支持的论据。更多还原

【Abstract】 Since the beginning of the new century, the realization of rule of law in administrative decision-making in China has attracted much attention of the ruling party and the central government, the significance of the study is to foster the modern concept of "Rule of Law" in administrative decision-making, to build modern administrative decision-making system and mechanism, and to promote the political civilization construction of China; the academic significance is to further explore the administrative decision-making theories of legal mechanisms of participatory democracy based on early research, and to expand the administrative law perspective.The dissertation establishes the idea of rule of law in administrative decision-making. That is, to promote the rule of law in administrative decision-making through the democratization of administrative decision-making, this is different from the point of view that the rule of law drives democratization. The idea of democratization preferentially is based on two aspects, on the one hand, "the rights democracy" rises generally, and the expression of public participation in administrative decision-making to safeguard their own rights and interests has become much stronger, and the government also begins to establish the communication mechanisms; on the other hand, a number of local-level government began to attract public participation in decision-making initiatively, and to activate all possible democratic elements within the system. The solution may be offered that the right of participation resists the corruption and abuse of administrative decision-making power. Participatory democracy starts with the rule of law in administrative decision-making, and the conflicts between high participation and low institutionalization should be resolved at present; therefore the system construction should be followed. In the system construction, administrative decentralization (Vertically, the central government shares power with the local government; horizontally, the government shares power with society) and public participation as the main contents, the model of administrative decision-making subject of multi-level and multi-system should be built. The relationships between the Communist Party of China and the government, between the National People’s Congress and the government exist in the administrative decision-making system. The reform should be promoted that the separation of the government and the Party functions and the administrative decisions-making is a core function of government that should be returned to the government; the authority of the NPC should be improved, and the power of NPC decisions on major issues should be fulfilled well. It is an important part of realization of rule of law in administrative decision-making regulating the relationship between the government decision-making and the NPC decisions on major issues, the relationship between the government decision-making and the CPC policy. And to form a coordinative, restraining, and positive interaction relationship, which is a challenging and long-term task. Therefore, this study argues that the realization of rule of law in administrative decision-making should take the road of gradualism.The study establishes the development goal of the realization of rule of law in administrative decision-making. That is the unity of the formal rule of law and the essential rule of law. "Integrated Rule of Law" advocates democracy as the decision-making process, and effective public participation in decision-making, directly safeguards their legitimate rights and interests, and the content of administrative decision-making shifts from the economic supremacy to equitable priority. This goal is not only for formal rationality, but also for value rationality, and furthermore, it takes into account the efficiency of executive decision-making. This issue has been discussed in the first time. In the system construction, the due process of administrative decision-making should be built, covering the proposal of decision-making, the openness of decision-making, decision-making hearings, the evaluation of decision-making, including the notification rules, the hearing rules, files reading rules and reason-giving rules, etc.This study establishes the dynamic mechanism of the realization of rule of law in administrative decision-making. The realization of rule of law in administrative decision relies on the combination of government and society. That is "interactive integration theory" which breakthroughs the limitations of a single thought of the authoritative political transition, and eases off the pressure of social disharmony. The structure of positive interaction between the government and society has been expected to be built. Civil society and government are cooperative rather than confrontational in China. Institutions supply is necessary for the development of social groups. The author advocates promoting state supervision through social supervision, creating condition for people’s supervision, activating these factors of system within rule of law terms and realizing positive interaction between state supervision and social supervision. The NPC Ombudsman system should be built, and judicial review of major administrative decisions should be built up, too. In supervision system, this study advocates the establishment of presumption of fault-based system, and fair liability and no-fault liability for the complement system, the administrative decision-making subjects bear liability and inside the decision-makers themselves have the accountability for their decisions. Meanwhile we should recognize the limitation of civil society in promoting the rule of law in administrative decision-making, and the government should play a leading role in institution-building and administrative decision-making system reconstruction. Wenling "Democratic Deliberation" and the practice of Ninghai have been providing supports for the argument.更多还原