Administrative procedures for the issue of rule of law,
【Summary】 With the reform, opening up and modernization construction continued to deepen, China is stepping up the pace of the rule of law, while the administration according to
law as the rule of law in China is currently building an important part of more concern to the community for its continued implementation of the in the procedures applied in is much more critical and important, because only the proper administrative procedures are the fundamental guarantee of rule of administrative law, legal procedures, proper, in order to better protect the legitimate rights and interests of the executive relative, but this is the so-called legitimate
administrative procedures for the rule of law. In this regard,
I would like to administrative procedures, the rule of law form, content and other aspects discussed to explore the hope of arousing the community to strengthen the supervision of administrative acts, so that the legitimate rights and
interests of the relative maximum and the largest in the range of guaranteed, as soon as possible the administrative procedures rule of law in the road towards a better direction and progress.
Key words the contents of the form of administrative
procedures, the rule of law
Law is the adjustment of social relations, regulating people's behavior and implement the basic means of social control, its role is by giving the participants a certain social relations, rights and undertake corresponding
obligations to the way the social behavior of subjects included in the track and order in certain China, which
produced the so-called procedural issues, which called on people's behavior in advance of the procedural arrangements and requirements. Among them, the pursuit of procedural
justice is a key point, but also valued by contemporary jurists.
With the current strategy of the continuous deepening of the rule of law, administration is also continuing the implementation, but as an important process of administration
by law - administrative procedures, is much more important and critical. Administrative procedures, by definition, refers to the administrative body (primarily the executive) to exercise the administrative powers of the steps, methods, sequence and
duration, are standard forms of administrative power and embody the rule of law, a reasonable course of conduct. Its many different types: can be divided into the basic procedures and non-basic procedures; external administrative procedures
and internal administrative procedures; binding administrative procedures and discretionary administrative procedures, grant benefits of procedures and the burden of administrative act administrative act procedures.
Since China is now the road is now the rule of law, the
rule of law is the core of good governance and the legal supremacy of Law. There are currently only that the administrative procedures is one of the important features of a statutory nature, it did not fully recognize the value of a
relatively independent administrative procedures, it is contempt procedures, arbitrary administrative sources. The rule of law of administrative procedure into orbit, and the modern rule of law, to integrate and standardize the diversity of administrative procedures in order to achieve an effective administrative purposes, the better to protect the legitimate rights and interests of the executive relative, due to administrative procedures is a fundamental guarantee of rule of administrative law This is the administrative procedures
for the rule of law.
Administrative procedures for the rule of law, we can both from the content and form elaborate. In its shape and performance of the Administrative Procedure Act can also be
known as the administrative law system, which provides that the Chief behavior of legal norms and procedures combined. It includes not only the Code of administrative procedures, there are scattered in other laws, regulations and administrative procedures related to regulations of the legal norms; the
content of the performance of constitutional environment for the first administration under the rule of law, under the supervision of the administration of justice rule of law, is authorized and controlled the unity of the executive the right
to rule of law, is the unity of form and substance of administrative law, is the unity of substantive justice and procedural fairness in administrative law is a static sense and dynamic significance of a unified rule of administrative law. In short, the ultimate goal is to make our country's executive powers to run towards the development of sound administrative procedures for rule of law in such a target model.
First, rule of law in the form of administrative procedures,
(A) administrative procedures, rule of law in the form of the target model
The current administrative procedures, the rule of law form, namely the Administrative Procedure Act the target model refers to a State Administrative Procedure Act to determine
the design of the desired effect because the main legislative purpose and integration rules, and thus tend to come out the overall style and characteristics, is the value orientation of the Administrative Procedure Act , or the law of value model.
1, efficiency models. This model the main administrative procedures in order to enhance administrative efficiency as the goal, the main consideration in a more favorable exercise of administrative powers the executive authorities to facilitate the management of the society and improve
administrative efficiency. Its characteristics are: First, pay
attention to administrative procedures, norms of scientific, rational; second, administrative action steps to compact and simple manner; and third, administrative staff with clear
authority and responsibility; fourth, administrative officials a great degree of discretion.
2, fair mode. See air through a series of executive power to exercise the system to prevent and control the abuse of administrative powers, thereby protecting the legitimate
rights and interests relative to the formation of the corresponding procedures for the purpose of system, also known as the right model. Its characteristics are: first the relative importance of people's participation in the
executive, the second great importance to the process of administrative activities, the reasonableness of the order, the third focusing on the impact of civil rights and obligations of executive acts of the process control.
Today the mainstream view is that fairness and efficiency of these two kinds of target model and the existence of these two very close contact with the various national perspectives are different, but for democratic, values and technical and operational issues in our country are very strong in terms of
that The primary value of the legal pursuit of social justice, the emphasis should be placed on executive authority to run the control and administration of the main binding mechanism. China's current national requirements from the rule of law,
there is a gap, thus determining a fair and priority, taking into account the efficiency of the target model.
(B) administrative procedures, the basic principles of rule of law in the form of
So far, China has not yet developed code form of
administrative procedure law, but there have been many laws have been provided for administrative procedural norms. Such as: "the Administrative Procedure Law," "Administrative Licensing Law" and so on and set a global trend are consistent
with China's national conditions and consistent with the administrative procedure law is imperative in order that runs
through the guidance of the fundamental principles in which it is very important to the natural .
Learn from foreign experience and with China's actual
situation, I think we can establish the following basic principles. First, the process principle of legality. This includes the administrative body administrative acts to make the steps to be followed, ways, methods and other procedural
rules and legal procedures must be strictly observed. Secondly, the procedures the principle of rationality. This is also known as the principle of proportionality. Performance settings for the program and the choice of two aspects of legal procedures, administrative procedures, the choice within the law must be objective, moderate, consistent with rationality. Third, the public, the principle of impartiality. The principle of openness, is against the counterpart of the public, embodied in the law open, disclosed, decided to make
public, etc.; justice requires equal treatment of parties to exclude all possible factors that result in inequality or prejudice. Fourth, the principle of participation. Relative are entitled to participate in administrative process and to
express their views and opinions and demands attention. Fifth, the efficiency and the principle of review. It is necessary to pay attention to the efficiency of the legal protection of fairness but also the relative rights and interests. Sixth,
good faith, trust protection principles. Characterized by good faith in the present society, which, in principle, help to stabilize the relationship between administrative law and thus more effectively help to protect the legitimate rights and interests of the executive relative.
(C) The rule of law in the form of administrative procedures, the basic system of
The basic system of the Administrative Procedure Act refers to the various stages of administrative procedures, with relative independence, and also plays a role as a bridge to connect the various stages, while the entire administrative procedures but also has important influence in the system of rules, its legal value is to make the Administrative Procedure Act the basic principles of concrete, which is an important
administrative modernization and can effectively safeguard and promote the modernization of administration.
Of modern administrative procedures system in China has not yet fully established, and still not perfect, but in order
to speed up the process of codification of administrative procedures, were as follows: First, the information disclosure system. Currently impossible to implement the party's right to information is not conducive to safeguard the legitimate
rights and interests of the parties and impartial exercise of executive power, which became the Administrative Procedure Act the primary system, which gives the parties the right to access files may seek redress. Second, the discovery system of teaching. Administrative body assigned any written or oral form and to inform the opposite party the obligation to be guided, indicating which to enjoy the right to assume those obligations and how to exercise. Through administrative body set up to teach a legal obligation to show, so that the
exercise of executive power with the rights of the people to ensure the adaptation, contribute to the relative rights of the executive power and restore balance to achieve communication and coordination of administrative body and the
relative relationship between the . Third, the hearing system. This is the core of the modern system of administrative procedure law. When the executive authorities in making an administrative decision, shall be given administrative relative parties the opportunity to participate and express their views on questions of fact and legal issues relating to listen to the views of interested parties in order to achieve the legitimate and reasonable purposes. Fourth, the avoidance system. The executive staff in administrative functions that may affect the case, according to the law shall not be in a particular organ, a particular region or may not exercise a certain authority. Fifth, the reasons the system. Administrative decisions made by administrative organs shall,
in fact and law on the grounds of the executive relative to indicate, with persuasion, self-discipline, proven protection.
Sixth, the prescriptive regime. Administrative legal relations of the main conduct of the parties given the time constraints,
in order to ensure administrative efficiency and protect the legitimate rights and interests of the parties and effective procedures for the system.
Of course, the basic system of the Administrative Procedure Act also includes many other areas such as listening
to the views of the system, the drafting of the review system, indicating that the identity system, collegiate system, the order of the system, administrative relief system, review system, which are reflected in our legal system,
administrative procedures a big step forward. Administrative procedures reflect the fundamental principles of law.
(D) the form of administrative procedures, the role of the rule of law
To develop an Administrative Procedure Act there must be a corresponding role, can have a unified legal system related to the provisions of both would be reasonable to improve administrative efficiency while protecting civil rights of the procedural law of a system. Remove unnecessary or complicated procedures, thereby increasing the administrative efficiency; the procedure can also play a restraining effect on the executive authorities, to prevent them from dereliction of duty, ultra vires and abuse of power and become corrupt practices and administrative services such as an important
tool to fight illegal activities.
Specifically manifested as follows: First, direct participation of citizens to open up new ways to exercise the executive power. In the traditional democratic system, a very narrow range of participatory mechanisms, limited to members of parliament and heads of state, but now also been expanded and now democratic breakthroughs, citizens who can be justified relative within the legal framework to defend, so that modern administrative rule of law and the spirit of
cooperation and consultation can be manifested. Second, to protect the rights of the executive is relatively specific, it is biased towards the ordinary citizens of the person, property, etc., with specific content can be translated into
real-time operating rights; administrative relative law by the entity's general obligations under the commitment of people into the main body of procedural rights, so that through the exercise of procedural rights, administrative counterpart to
the maintenance of specific substantive rights are not an administrative act and prevent the illegal increase in their physical obligations, the third: to oversee the administrative body exercising functions and powers as the Chief the legitimate operation of the statutory procedures provided it
is a concrete and practical content and operation of the form of content; given the relative composition of people the opportunity to present the same reasons and requirements, clearly inform them of their procedural rights and procedures
after the end of the legal consequences; and administrative discretion over the feasibility of monitoring, to guide the executive power tends to legitimate. reasonable administrative acts of administrative authorities to exercise effective supervision and restriction to make it fail to favor of one party or the purpose of seeking their own interests.
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Administrative procedures, the rule of law require the acquisition and the exercise of administrative power must be based on provisions of the law and in accordance with legal procedures. Not only be ultra vires and abuse of power nor dereliction of duty, to accept supervision of all
administrative acts, illegal administrative acts bear the corresponding legal responsibility is to birth the requirements of market economy development, political stability and democratic political system established by the requirement for the power of the government the expansion of government control and scientific management, strong demand, while the rule of law popularization of the cultural background of thought is another imperative. There is no rule of law and procedure, it is impossible to achieve
administrative rule of law, Zhang Yang procedural justice today, the rule of law, administrative procedures, should attract our attention.
Legally required content and form is the same, but the difference between ideal and reality is often a lot of
administrative procedures for the concept of the rule of law is very comprehensive, beautiful, but in practice still operate, there are some difficulties and obstruction.
From the view of China's current laws and regulations, administrative procedures have been the rule of law is relatively backward in the content, there are still more problems, specifically manifested as follows:
Firstly, the administrative concept of the persistence of serious impact on restricting the administrative procedures,
the rule of law in China and healthy development. This conventional wisdom view of administrative law to "rule the people of the Law," "Management Act", "power is above the law," the executive to be the case are not in disguise, "conciliation", Guanguanxianghu other unjust judicial practices exist in different degrees These are serious impact on restricting the administrative procedure law of China's healthy development;
Second, the interface and administrative remedies can not narrow the scope of judicial review of administrative action to implement effective supervision. At present, China is still too narrow scope of judicial review, abstract administrative acts and administrative and legislative action, the internal administrative acts excluded from judicial review, etc. outside. This is not suited to the development of democracy and the rule of administrative law requirements, does not conform to the development trend of world democracy and the rule of law. , As previously thought the fire department of
fire causes and responsibility for the accident found that an "expert conclusion" is a non-actionable behavior, it is
considered as "acts of the executive confirmed that" is the identifiable behavior, and thus a greater range of protection
of the legitimate rights and interests of the parties.
Third, judicial independence and judicial corruption is not to achieve justice, first of all an independent judiciary, there should be no restrictions based on the facts and in accordance with the law to decide the admissibility of the case; the overall quality of judges within the court is not high, judicial corruption occurs a problem. Unbiased and impartial administration of justice, timely and correct administrative violations of the administrative procedures
essential to the rule of law.
Fourth, the administrative law enforcement, "failure to abide by strictly enforced, law-breakers," and not open to the
parties as required procedures, arbitrary interpretation of the legal majority of their rights, approval procedures for non-compliance, Guan Guan-based cards, fines and fees , the
local administrative and law enforcement failures. Administrative procedures, the rule of law, including administrative procedures, legislation, legislation, the
citizens can go on, but quite a lot of administrative procedures, legislation, which is higher than the formation of a lack of administrative procedures, the rule of law, not the direct cause of the overall information content. Embodied in the rule of law, administrative procedures, lack of clear constitutional provisions; lack of uniform administrative procedures, legislation, tend to attach importance to post-
process, light and matter in the prior proceedings; the administrative procedures set by the executive authorities
themselves, often to expand their rights, increasing the relative obligations of, the obligation not to and so on; administrative procedures, weak participation, transparency is low, openness is very obvious, the reasons the basic system
has not been implemented; liability system is not perfect, the lack of administrative violations shall be the main requirements in respect of legal liability, breach of statutory procedures are not will affect the effectiveness of administrative acts, which seriously undermine the authority of administrative procedures.
(C) Analysis of proposed measures to tackle the problem
Administrative procedures, the rule of law in China can