Changes in the Theoretical Foundations of Administrative Law in the Russian Federation

Author: Liu Chunping
Publisher:
Publish Date: 2006-12-01
Features: In recent years, research on the theoretical foundation of administrative law in China's legal academia has entered a deeper level, forming various different doctrines and schools. However, the most influential doctrines are three: the management theory, the control theory, and the balance theory. Among them, the "management theory" is represented by the administrative law of the former Soviet Union and China before the 1980s; the "control theory" is exemplified by the administrative law of countries; and the "balance theory" is used to explain the current Chinese administrative law. For Chinese administrative law, with China entering the era of reform and opening-up and transitioning from a planned economy to a socialist market economy, the original theoretical foundation of administrative law based on the "management theory" has changed. The legal academia has paid great attention to this change and attempted to explain and argue it through theories such as the "balance theory," the "serving the people theory," the "Marxist government theory," the "public power theory," the "fairness, efficiency, and stability theory," the "public interest-centered theory," the "service theory," and the "comprehensive control theory."
The administrative law of the Russian Federation has undergone significant changes in its legal system after the dissolution of the Soviet Union, political transformation, and economic restructuring, with the transformation of administrative legal systems being particularly evident. Traditionally, the theoretical foundation of the Russian Federation's administrative law has been classified under the "management theory." However, the question remains: does contemporary Russian administrative law continue to adhere to the "management theory," or has it adopted the "control theory" as its theoretical foundation due to the influence of Westernization trends in economic reforms, or has it established some other concept? This issue has become a blind spot in Chinese administrative law research. As a result, when studying and introducing foreign administrative law, some researchers either treat the Soviet Union's administrative law as merely a type of legal system or completely exclude the Russian Federation's administrative law. This neglect of research on the Russian Federation's administrative law has inevitably led to shortcomings in the study of foreign administrative law. It is in this context that the research topic of this book has been determined.
The author believes that the research topic of this book—examining the evolution of the theoretical foundation of the Russian Federation's administrative law—has significance in both theoretical and practical aspects. In terms of its theoretical significance, it is primarily reflected in the following three aspects:
First, expanding the research fields of foreign administrative law and comparative administrative law. Currently, domestic research works on foreign administrative law and comparative administrative law almost completely exclude the contemporary Russian Federation after the dissolution of the Soviet Union, with some stopping their research at the Soviet period. In the field of foreign administrative law research, there are no specialized works dedicated to the Soviet Union's administrative law or the contemporary Russian Federation's administrative law. In the 1950s and 1980s, Chinese scholars translated and published textbooks and works on Soviet administrative law, but no thematic research was conducted. For the Russian Federation's administrative law after the dissolution of the Soviet Union, only translated versions of relevant codes have been published, and there are still no specialized academic works or other forms of academic research. This neglect or slight regard for the study of Soviet and contemporary Russian Federation administrative law issues, despite numerous objective and subjective reasons, cannot be denied as an abnormal and inappropriate phenomenon in the overall research status of foreign administrative law and comparative administrative law. Therefore, this book attempts to make pioneering efforts in the research fields of foreign administrative law and comparative administrative law.
Second, filling and continuing the research on the Russian Federation's administrative law. The administrative law of the Soviet period has been classified as "management law" in the Chinese administrative law academia. However, there has been little theoretical analysis on why the Soviet administrative law became "management law." Some scholars have discussed this issue in scattered references in their works, such as Professor Guan Baoying's and Dr. Gan Wen's "General Principles of Administration and Law." After the dissolution of the Soviet Union, the contemporary Russian Federation has undergone a transformation from a "developed socialism" to a "social state" in terms of its state system, from a "unitary system" to a "separation of powers" in terms of its political system, from a planned economy to a market economy in terms of its economic system, from comprehensive public ownership to private ownership in terms of its ownership relations, and from a one-party system to a multi-party system in terms of its party system. These changes inevitably reflect in the contemporary Russian Federation's administrative legal system, leading to a transformation in the theoretical foundation of administrative law. However, the Chinese administrative law academia has not yet paid attention to or studied the contemporary Russian Federation's administrative law and its theoretical foundation. Therefore, this book fills and continues the research on the Russian Federation's administrative law.
Third, enriching and advancing the study of basic theoretical issues of administrative law in the Chinese administrative law academia. In recent years, the Chinese administrative law academia has made significant progress in researching some basic theoretical issues, especially the theoretical foundation of administrative law. Although some scholars still have objections to the classification and summarization of the three models—"management theory," "control theory," and "balance theory"—it cannot be denied that through the study of the theoretical foundation of administrative law, one can more deeply observe and understand the essence and role, basic principles and legislative value orientation, and specific administrative legal systems of administrative law in different countries. Therefore, the study of the theoretical foundation of the Russian Federation's administrative law, from a vertical perspective, addresses the issue of the direction of the theoretical foundation of administrative law in the transformation after the dissolution of the Soviet Union, fills the historical continuity in academic research and clarifies the development context; from a horizontal perspective, it can clarify certain misunderstandings in the current Chinese administrative law academia about the Russian Federation's administrative law, enrich the content of basic theoretical research on administrative law, and, to some extent, promote and expand the study of basic theoretical issues in Chinese administrative law and foreign administrative law.
In terms of its practical value, it is primarily reflected in the following two aspects:
First, providing references for improving and perfecting China's administrative legal system. The basic theory of administrative law is the foundation for constructing the administrative legal system of a country, and the theoretical foundation of administrative law is the core issue in the basic theory of administrative law. The design and construction of specific administrative legal systems are all based on the theoretical foundation of administrative law, embodying the basic spirit and values of administrative law. It is a well-known fact that the administrative law system of the early People's Republic of China largely followed the Soviet model, so it has long been classified as "management law" together with the Soviet administrative law. Since the reform and opening-up in the early 1980s, China's administrative law theory and administrative legal system have gradually evolved in response to changes in domestic political and economic conditions. In the research of administrative law theory, there has been a gradual shift from an initial focus on the "control law" model of countries to an interest in the "public power" model of countries, and then to the proposal of models that reflect Chinese characteristics, such as the "balance theory," the "serving the people theory," the "Marxist government theory," the "public power theory," the "fairness, efficiency, and stability theory," the "public interest-centered theory," the "service theory," and the "comprehensive control theory." This rational and deepening theoretical research indicates that the Chinese administrative law academia is exploring which theory should serve as the basis for guiding the construction of administrative legal systems, although there has not yet been a fully unified understanding. After the dissolution of the Soviet Union, the Russian Federation has faced similar issues. Unlike China, the contemporary Russian Federation has undergone substantial changes in all fields, including politics, economy, and legal systems. Therefore, it naturally raises the question: if China and the Soviet Union were comparable in the past, are China and the Russian Federation comparable now? However, the argument of this research topic is that whether it is countries or countries, their political, economic, and legal systems are all different from China, but their administrative law theory and practice have still had a certain impact on China's administrative legal governance. Compared to this, both China and the Russian Federation are countries transitioning from a planned economy to a market economy, and how their administrative law reflects and embodies this change, and how it affects the change in the theoretical foundation of administrative law, should have many commonalities and regularities. Therefore, the study of the theoretical foundation of the Russian Federation's administrative law has certain reference significance for improving and perfecting China's administrative legal system.
Second, providing inspiration for the value orientation of China's administrative legislation and the future direction of administrative legal governance. The research on the basic theory of administrative law ultimately serves administrative legislation, administrative justice, and administrative enforcement. After the dissolution of the Soviet Union, the 1993 Constitution of the Russian Federation proclaimed "the highest value of the rights and freedoms of people" as an important constitutional principle, which correspondingly redefined the relationship between the state and the law, the state and its citizens, and the relationship between state organs. The change in constitutional principles inevitably reflects in the current Russian Federation's administrative legislation and will also affect the improvement and establishment of various administrative legal systems. Through the 2004 constitutional amendment, China included "the state respects and protects human rights" in the Constitution, which will also produce responses in the field of administrative law. In the future administrative legislation, administrative justice, and administrative enforcement processes, how to embody and implement this constitutional spirit is both a theoretical issue and a practical issue. Therefore, the study of the issue of "the evolution of the theoretical foundation of the Russian Federation's administrative law" will have a certain inspirational role in China's administrative legislative value orientation and the future direction of administrative legal governance.
The originality of this book is mainly reflected in the following two aspects:
First, innovation in research fields. Currently, there are no systematic, comprehensive, and in-depth research achievements on the Russian Federation's administrative law in China. The research topic of this book is not to simply introduce the Russian Federation's administrative law or provide a macroscopic explanation of the specific content of the Russian Federation's administrative legal system, but to specifically explore the changes in the theoretical foundation of the Russian Federation's administrative law and its causes. This is a blank area in the field of foreign administrative law and comparative administrative law research in China, so the topic has a certain pioneering nature.
Second, originality in academic viewpoints. Currently, no research has been conducted in China on what the theoretical foundation of the Russian Federation's administrative law is, and there are no existing viewpoints or theories to follow. Even in the Russian Federation's administrative law academia, no specialized research on the theoretical foundation of administrative law has emerged, nor has any theory or model been created. Therefore, the research conducted in this book is based on the reality of the Russian Federation's administrative law theory and practice, combined with the methodology of administrative law research in China, to abstract and generalize the theoretical foundation of the Russian Federation's administrative law. The originality of the academic viewpoints of this book is reflected in four aspects:
First, systematically reviewing the process of the evolution of the theoretical foundation of administrative law from the Soviet Union to the contemporary Russian Federation;
Second, analyzing from multiple angles the causes that promote and influence the changes in the theoretical foundation of the Russian Federation's administrative law;
Third, proposing the view that the theoretical foundation of the Russian Federation's administrative law is transitioning from the traditional "management theory" to the modern "control-balance theory";
Fourth, examining and analyzing the convergence, divergence, and future development trends of the theoretical foundations of administrative law between the Russian Federation and China.
The research of this book primarily adopts historical analysis and comparative analysis methods. The content of the book involves issues of both vertical and horizontal dimensions. Vertically, it primarily revolves around the evolution process of the theoretical foundation of administrative law from the Soviet Union to the contemporary Russian Federation, analyzing the changes in the theoretical foundation of the Russian Federation's administrative law today and the causes of these changes. Horizontally, it primarily involves analyzing and researching the Russian Federation's administrative law within two reference frameworks: first, analyzing and understanding the positioning of the theoretical foundation of the Russian Federation's administrative law in relation to the development directions of the representative administrative laws of the common law system and the civil law system; second, analyzing and understanding the convergence and divergence of the positioning of the theoretical foundation of the Russian Federation's administrative law with the development direction of Chinese administrative law. The research content determines that adopting historical analysis and comparative analysis as the two basic research methods is relatively appropriate.