自从梅因在其《古代法》中提出所有近代社会的运动是一个从身份到契约的运动后,契约便在民事领域中大放异彩。而在公法领域,由于我国长期受国家主义法律观、暴力主义法律观,尤其是管理主义法律观的影响,存在着严重的“权力缺席”现象。~①学者们基于此而言法律管理,相对人及政府官员则毫不怀疑地认为行政即管理,行政即强制。于是“命令一服从”便成为行政关系的基本模式。在这一模式下,政府总是被置于优先地位,成为强制的化身;相对人被置于末位,只能选择服 Since Maine proposed in his “ancient law” that all modern social movements be a movement from identity to contract, the contract shines in the civil sphere. However, in the field of public law, due to the long-term influence of the legalist view of the nation and the legal concept of violence, especially the view of the legalism of management, there is a serious “power absence” phenomenon. On the basis of this, scholars regard legal management as the relatives and government officials have no doubt that administration is management and administration is compulsory. So “command to obey ” has become the basic mode of administrative relations. Under this model, the government is always placed in the priority position and becomes the forced incarnation. The relatives are placed at the bottom and can only choose the service