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文章通过分析澳门终审法院的三个行政裁判案例后认为,公、私法二元区分依旧是澳门行政法构建的理论基础。法位阶原则连同法律优先、法律保留原则,与公、私法二元区分没有实质的关联,即这些原则不是建立在公、私法二元论的基础之上。在宪制性法律的层面上,如果将澳门特别行政区基本法视为公法,在某种层面上则可能带来与私法同等的法律地位的倾向。行政法的基础,即公私法二元区分,与宪制性法律所确立的法位阶原则、法律优先原则、法律保留原则存在张力。
After analyzing the three cases of the Court of Final Appeal in Macao, the article argues that the dual distinction between public and private law is still the theoretical basis for the construction of Macao’s administrative law. The principle of law and rank together with the priority of law and the principle of legal reservation have no substantial connection with the dual distinction between public law and private law. That is, these principles are not based on the dualism of public and private law. At the level of constitutional law, if the Basic Law of the MSAR is regarded as a public law, it may at some level tend to have the same legal status as private law. The basis of administrative law, that is, the dual distinction between public law and private law, has the tension with the principle of law and order, the principle of priority of law and the principle of legal reservation established by constitutional law.