【作者】 刘福元；

【导师】 崔卓兰；

【作者基本信息】 吉林大学 ， 宪法学与行政法学， 2007， 硕士

【摘要】 作为抽象行政行为的组成部分,行政立法不管是在政府管理方面,还是在民主参与方面都有着极为重要的意义。近一段时间,“行政立法人性化”的呼声越来越高,许多体现人性化关怀的行政立法陆续出台,“人性化”俨然成了政府引导的行政立法的标准和目的。本文对行政立法的人性基础进行了分析,通过对人性概念的考察而将其分为“本能”和“人道”两个视角,并在此基础上对行政立法人性化的正当性予以论证,最后对行政立法人性化的现实操作予以评述和展望。本文认为,人道视角的行政立法人性化最核心的因素在于对公民基本权利的肯定与维护,而本能视角的行政立法人性化最核心的因素在于,人类的本能要求人类设计的制度去顺应它,或是去利用它,而不是压抑它,更不是在人性之外去打造空中花园,刻意地压制人性或无意地违背人性的立法都不可能得到很好的实施。然而如何使行政立法真正达到人性化的目标,则是一个不断竞争和试错的过程。更多还原

【Abstract】 As a part of abstract administrative behavior, administrative lawmaking has extremely important meaning both in the management of the government and the participation in democracy, it is the necessary modulator in the normal operation of the whole society, and it is in the basic position of the whole activities of the government. Through the continuous investigation and fulfillment of the administrative lawmaking, the principle of democratic lawmaking and the unification of the legal system and maneuverability have already became the agreeable principle, but the voice of the“humanization in the administrative lawmaking”is higher recently, many administrative lawmaking which reflect the humanized care are made, and the“humanization”become the standard and purpose of the administrative lawmaking. An important effect of the law is to find and make and fulfill the rule, but the rule is not the angel, none the devil, it is just the designed behavior, at the least, the accurate comprehension of the human nature is helpful to reduce the evading to the law. But the jurist often considerate the problems of the politics, economy, society, race and so on, they often forget the“human”, on this foundation, the article investigate the humane foundation of the administrative lawmaking.The article is divided into three parts:Ⅰ.The dual angle of human nature: humane and naturalⅰ.The concept of“human nature”. All sciences always have some relations with the human nature, they always through some path to return to the human nature. However, the scholars always have different comprehension to the human nature, and the current theory just describe the humane nature, not to define it, as a result, the“human nature”has entirely different meaning in different environment of language.ⅱ.The abruption of“human nature”in the systematic environment of language. The description of“human nature”can be divided into the humane angle and the natural angle, the former over-emphasize subjective aspect and the aspect of emotion, and the latter over-emphasize objective aspect and natural aspect, the felling that the two aspect cause probably can be generalized: the former is a kind of hope which needs to be developed, the latter is a kind of helpless which need to face. In the systematic environment of language, the angle of human occupies almost the whole parts of the space. On this angle of view,“human nature”is a“tender feeling”vocabulary, it makes the concrete person get the more height of sensitive faculty than the abstract rule and power, in here, human is not the means but the purpose, the establishment and operation of system can not disobey this purpose, otherwise it is unworthy to chase. The angle of instinct is more complicated. An important characteristic of“instinct”is the objectivity, it is the necessity that human must have, not as the“human rights”which is the behavior that the person should possess. The objectivity requests people to realize it and face it. The article through the investigation to the standpoint of Wilson, John Dewey, Sigmund Freud to prove the instinct.ⅲ.Is the“the human nature is originally bad”the foundation of the constitutional government and the rule of the law? The article holds that it is unadvisable to use the“kind”and“bad”to define the human nature, the foundation of the constitutional government and the rule of the law is to grasp the every aspects of the characteristics of the human nature and to make use of these characteristics in a good technique means.Ⅱ.The certification of the human nature of the administrative lawmakingⅰ.The angle of human. In the angle of human, the human nature of the administrative lawmaking emphasize to infuse the“make the people in the center”and the humane concern into the process of the legislation, under the background of acknowledgement and affirmation of personal independently pursue oneself happiness, and agreement and protection of personality, value and dignity, promote the development of human. The core factor of the human nature of administrative lawmaking in the angle of human is the maintenance and affirmation to the basic rights of citizens.ⅱ.The angle of human’s natural character. The core factors of administrative lawmaking in the angle of human’s natural character is that people instinctively request human to establish system to adjust it, or to make use of it, not to suppress it, not to create an air garden outside the human nature, and intentionally inhibit human nature or not intentionally disobey the humanistic lawmaking to get a good implement impossibly.Ⅲ.The analysis of concrete evidence of the human nature of administrative lawmakingⅰ.The development and trend of human nature of administrative lawmaking. If we define the“human nature”in the angle of human, and just investigates the current laws and legislative rules which the organization that has administrative rights to make, the trend of the human nature of administrative lawmaking is recently strengthened. Such as“The managerial method of the salvage in the city”,“The law of the residents’ID card”,“The regulation of the marriage register”. But there are many problems in the practice, the different comprehension of the human nature, and the valuable rank of human nature in the law, and the actual effect of human nature in the lawmaking.ⅱ.The prospect of the operational mode of administrative lawmaking. The operational mode of administrative lawmaking should follows these worthy: human natural character is better than humane. Respect and maintain the color of human nature of administrative lawmaking, that is the basic rights of citizen, we should measure the instinct of human before, and to adapt and make use of the instinct of human, otherwise, the basic rights is hard to be protected. In the double angles of instinct and human, when the lawmaking matched the instinct of human, it is just likely to be human, and could protect he basic rights of citizen really. In the meantime, on one hand the human nature of administrative lawmaking affirm the need and the rights of human through legislation, the other hand the current law must be the outcome that is the biggest tolerance in spirit to the need of subject, thus the lawmaking should try it best to make the need of subject, concept of value and the method of behavior to coexist.In the end, the human nature of administrative lawmaking need to build reasonable lawmaking mechanism. Firstly, the administrative lawmaking should build up at the foundation of proper consideration to the human nature, and comprehend the human and instinct deeply, and combine the purpose of the legislation, and establish the reasonable process of the lawmaking. Secondly, we should build up the mechanism of the subject of lawmaking, make the lawgiver and the citizen have the same identification, and let the citizen become the legislative corpus. Lastly, we should establish the mechanism of the legislative democracy an communication. The lawgiver should communicate with citizen through various paths, and understand the need, will and viewpoint of the people, and make it to be the important factors which will decides the contents of law, and guarantee the law meets the need of human nature more.更多还原