私主體何時承擔公法義務

合作治理時代，私主體越來越多參與行政任務對行政權及行政行為的合法性造成衝擊。私主體是否以及何時承擔公法義務，涉及法律上將私主體認定為行政機關的問題。美國法上的“關係標準”於判例中生成，並將實質監管關係作為認定行政機關的核心要素。“關係標準”一方面對於控制權力、統一法律適用和相關概念的厘清具有積極意義，另一方面也面臨著違逆立法初衷、危及資訊公開價值等指責與挑戰。我國公私合作中的責任機制建設、行政主體理論的範式革新等均可從中獲得有益啟示。

Nowadays, more and more private entities are getting involved in the administrative tasks, while severe challenges has been brought to the legitimacy of administrative power and administrative actions. In view of this, certain attention should be paid to the issue of private entity’s duties under public law, especially the issue of legally identifying aprivate entity as an administrative agency. In the U. S. Law, serving as a principle, '' Relationship'' test was generated in legal precedents, which took substantial supervision relationships as the core standard to identify administrative agencies. On the one hand, it is positive for the clarification of the restraints on administrative powers, the application of uniform laws and related concepts. On the other hand, it is criticized for contravening the legislative purposes and endangering the value of information disclosure system. For China, useful enlightenments can be got in the construction of the responsibility mechanism in public-private partnerships, as well as the paradigm innovation of the administrative subject theories.