行政法上的客观法与主观法

针对如何理解行政法上客观法与主观法的关系,存在三种基本立场。主客观法分离立场认为维护公益的行政法与公民个人权利形成对峙。该立场存在无法关联违法性与侵权性、抱持无视宪法的行政法观等疑问。主客观法结合立场主张从客观法中分出一部分请求权对应行政主体法定义务。该立场存在宪法与行政法平台错位、公益与私益纵向割裂等局限。主客观法统一立场将客观法当作主观法的全部集合,权利由客观法分解得来。该立场是理解行政法主客观法关系的妥当见解。在分配行政与利害调整观念下,特定或不特定复数私人主体间基于行政法律规范的各种利益与不利益冲突、对立并交织而成的利害关系网才是行政实体法律关系的本质,行政法上的实体权利应当由此导出。遵循“利害关系→合法权益”而非“合法权益→利害关系”的逻辑顺序才是判断行政诉讼原告资格的正确方法。

Objective Law and Subjective Law in Administrative Law

There are three basic positions on how to understand the relationship between objective law and subjective law in administrative law. The position of separation of subjective and objective laws holds that administrative law is an objective order construction law aimed at upholding public welfare. Citizens’ personal rights come from sources other than the legal norms on which administrative acts are based and are in a relationship of confrontation with administrative law. This position has the problems of inability to relate illegality and infringement and confusing the relationship between power and rights. In addition, this position also regards the constitution and administrative law, which belong to the same narrow public law domain, as two separate disciplines. The position of combination of subjective and objective laws, which advocates that a part of the claim right should be separated from the objective law to correspond to the legal obligations of administrative subjects, appears in the form of the mixture of the protection norm theory and the fundamental rights theory. Although this position solves the problem of lack of correlation between legitimacy and infringement, it has its own limitations, such as the dislocation of the platform for the application of the constitution and administrative law to the rights of the party subject to administrative act and the rights of the third party, respectively, and the artificial separation of public welfare-upholding administration and private interest-upholding administration. The position of unity of subjective and objective laws regards objective law as the whole set of subjective laws, rights as the results of the decomposition of the objective law, and the objective law and subjective law of administrative law as the two different sides of the same coin. This position is an appropriate view to understand the relationship between subjective and objective laws of administrative law. Under the concept of distributive administration and interest adjustment, the network of various conflicting, opposing and intertwining interests and damaged interests formed between specific or unspecified plural private subjects resulting from administrative legal norms is the true face of the substantive legal relationship, and the substantive rights in administrative law should be uniformly derived from this interest network. Among these relationships, the two most basic types are the opposite interest relationship as the product of transformation of constitutional freedom rights in administrative law and the interchange interest relationship as the product of transformation of constitutional equality rights in administrative law. The correct way to judge the plaintiff qualification in administrative litigation is to appropriately deal with the relationship between paragraph 1 of Article 2 and paragraph 1 of Article 25 of the Administrative Procedure Law and adopt the method of deducing the legal interpretation of "infringement of legitimate rights and interests" from the legal interpretation of "interest relationship", rather than the reverse method of deriving "interest relationship" from "infringement of legitimate rights and interests".