From the perspective of modern rule of law, government management innovation - on administrative reform attitude,
direction and limits of Humble Opinion
【Summary】 immediate administration of China's new measures to endless controversy and many can be obtained from
observation and evaluation of a number of ways: First, many of the typical case (incident) cases of the concept reveals a serious lag issue that must be overcome wear glasses to see the old new things and phenomena; second is rich in content,
administration reform and innovation in the context of complex and ambitious, the most important background factor is the deepening of the reform by the political and technological revolution; Third, China's administrative reform and innovation trends, based on the premise of people-oriented
towards flexible management, efficient management and methodology, and focus on ways and means of administration of innovation and development, which is a relatively low cost, risk, efficient and effective robust, accessible path to a
consensus choice ; Fourth, administrative reform and innovation should adhere to the rule of law and basic standards of practice boundaries, to prevent the name of feather one's nest through innovation in reality. The key is
to the rule of law and development perspective to look at, to tolerance and calm attitude to deal with the administration of new initiatives and their immediate controversy. Scholars from the idea of updates and system innovation perspective, the proposed reform of China's basic attitude of the
administration, basic conclusions and the basic
recommendations that deserve attention and study.
【Key Words】 administrative innovation; rule of law,
government building; flexible management; efficient management; Method Innovation
In order to implement the basic strategy of governing the country according to law, adhere to people-oriented,
administrative people, and in 2004 the State Council promulgated the "Implementation Outline for comprehensively promoting administration according to law," that this important legal document the building of our country's legal practice, to improve the administration, the rule of law to
promote innovation, the building of rule of law, Government has proposed a more clear and specific requirements. September 4 this year, Premier Wen Jiabao delivered a speech entitled "Strengthening the government building, the implementation of
management innovation," an important speech, stressing the need to transform government functions, to further standardize administrative power, depth to combat corruption, to prevent the abuse of administrative power to improve administrative
efficiency, strengthen the government's executive power and credibility. We should strictly follow the requirements through the administrative system, mechanisms, systems and methods of reform and innovation, and actively explore effective path for the administration of the rule of law as
soon as possible to enhance administrative capacity of public officials according to law, without which there are no shortcuts to take. Immediate administrative and executive legal practice in China taking place in many changes, these
changes often the case in the typical form of a case or controversy presented before the people, for example: Case 1 -
Organization of private entrepreneurs to Tsinghua University, Zhejiang studies provoke controversy; Case 2 - Guangzhou to
encourage people to shoot pictures traffic violations, Jiangsu Qidong, to encourage drivers to assist the security management controversy; Case 3 - Yinchuan, Nanjing, Hangzhou, Beijing and other places a "death call you" has been criticisms of governance led to a small ad caught in a dilemma; Case 4 -
Beijing and other places to install electronic eyes and flow of electronic eyes for the traffic safety management to spark controversy. Typical examples of these cases and the administrative authorities introduced new measures, new
mechanisms and new methods tend to give rise to different evaluations, making engaged in practical work and theoretical work, the comrades are quite confused. These typical cases and examples, or the changes taking place, reflecting the many new
situations and new things and new problems, its ambitious and complex social background and academic background, a profound impact on the rule of law and government construction. So how to treat such a phenomenon? If we can open a modern rule of
law and development perspective to analyze the moment mainly carried out by government agencies at all levels of the administration reform and innovation, to grasp some of the valuable things that we raise awareness and improve their work will be very beneficial.
1, administrative reform and innovation backgrounds - the
deepening of reform and scientific and technological revolution
Recently there has been typical of these controversial cases and examples, by no means local, individual, accidental
phenomenon, even chance events, which also has a certain inevitability. Can be said that the administration appeared in large numbers in recent years, new initiatives are top-down,
bottom-up, diverse, and I put it summed up the ground point to the face, from top to bottom interaction, systematic and comprehensive, gradually pushing the development of process, but must have some background, a certain degree of regularity in which, perhaps this is one of the times. Immediate administration of innovation is a grand systematic project, in the structure, mechanism, methods, and legislation have taken place with or fast or slow, shallow or deep, or changes in the background of these changes What are the factors? I summed it up as two: the deepening of reform and scientific and
technological revolution. 
(A) a deepening of political reforms
We know that for years have been carried out economic reform in China has scored great achievements, for all to see, can not deny the need to deepen this point can be said without
doubt. Meanwhile, the deepening of economic reform has been difficult, and must be matched the deepening of the political system before we can promote each other, effective forward, continue to deepen, otherwise difficult to further advance
economic reform, it is difficult to achieve further development. The problem is, we are now living in the current reform proposed by the Government to reform the first, does this mean able to comprehensively and systematically promote the political system do? I am afraid that does not work, because some parts of the reform more sensitive, too politically sensitive. But there are some parts of the sensitivity is just not so strong, you can choose more time to be launched, it is our administrative structure, mechanism,
method of innovation, so it becomes a broad sense of the political system of the more active and relatively healthy part, this is great background. It can be said that this is the life of our society in recent years, the rule of law and
administration and administrative reform initiatives related to more to launch, it occurs more frequently aroused widespread controversy and a cause of concern. Discussed earlier in those cases and examples, it illustrates this point.
(B) the impact of scientific and technological revolution
The increasingly widespread use of high-tech, a substantial
impact on social life, but also a profound impact on the development of administration and administrative law. For example, in recent years, Henan Province, to give 35 counties (including county-level cities) in prefecture-level city in
economic management authority, that is, the direct provincial county, giving it access to city-level economic management.
 Henan why should this reform? Because there is a saying
that they have to provincial control county, the administrative system to do such an exploration. However, traditional management theory, a 6-8 senior management is the
best under the management of range; now way to implement electronic office, an unprecedented increase the efficiency of management and effective administration greatly expanded range, can be implemented flat management organization
system . This innovation can be seen in Henan initiative is the implementation of e-government and administrative concepts change in results.
Again, everyone knows that changes in administrative law has strong characteristics of the amount over a broad area, has been widely believed there can be no uniform code of administrative law in 1994, the Dutch General Administrative Law Act in fact only a framework of legislation, not to mention real entities, based on the Uniform Code. However, the rapid development of modern science and technology, especially in the development of computer, so that we have a possibility
of a unified administrative entity-based code? I think in the
near future is entirely possible. Because we can give the computer a number of rules in advance, when the new laws, regulations, rules and regulations promulgated, the computer
will be able to eliminate by the rules with all the previous conflicts between legal norms, which would make administrative law, but no longer just a compilation of codification, which may form the Code (such as "April 25, 2056 electronic version
of certain Administrative Code"). The impact of high and new technology (including the aforementioned use of "electronic eyes" and other test management tools), the administration and administrative law dramatically changed the face of the corresponding legal rules and concepts must also be adjusted. Otherwise, there is no rule of law to adapt to social change in the concept of the rule of law can not run well. First of all, you can not work out the corresponding legal norms out; even worked out, and are not well implemented.
This is why we must grasp the two major background, economic and political reforms deepen and the extensive application of high-tech, give us a great impact and
Second, administrative reform and innovation trends -
flexible management, efficient management and methods of innovation
Said earlier, the role of contextual factors, the administrative reform of the major trends in the general direction of how? My view is: China's administrative law and administrative law is in transition, the process of
development - administrative and legal systems in the
administrative practice of democratic, scientific, rule of law under the influence of global trends in the value of people-
oriented goals under the guidance of moving toward flexible
management and efficient management, and focus on ways and means of innovation, which is low cost, low-risk, high
efficiency, the effectiveness of robust, accessible consensus on a choice; Administrative Law of the discipline system is
undergoing an unprecedented major changes in the principles of administrative law, the main , behavior, methods, procedures, supervision, and relief theoretical knowledge, are more or less, or deep or shallow manner changed, and profoundly affect the practice of administrative law. How kind of practical and academic developments, I think, at least the following three points of particular concern:
(A) Flexible Management - "people-oriented, administrative
democracy" inherent requirement for
First, the implementation of flexible management. Not all of the administrative actions need to take a mandatory approach, if he did, it will result in the executive and the executive is relatively widespread conflict between, sharp confrontation is not conducive to building a harmonious
society. Secondly, we must pay attention to administrative Modesty. The past, the administration is the executive power, high-power executive, the executive is above all now self-
restraint. Third, we must implement democratic administration.
Citizens and social organizations more and more active participation in the administration and administrative law practice and began to become a general consensus, the basic requirements and behavior patterns. Fourth, China should pursue political interaction, and harmony. This is also a
trend, a lot of administrative reform and innovation, embodied such a request. It is also building a harmonious society in China to improve the image of the government of the inherent requirement.
I have noticed that many scholars began to focus on research of flexible mechanisms advocated by the
administration of behavior, such as administrative guidance, administrative contracts and so on. Administrative guidance relative may choose to accept or not accept the administrative guidance, even if not accepted, it will not be liable; administrative contract negotiation process, the executive relative who can consult with government agencies, bargaining for certain content. There are also administrative support,
administrative incentives, administrative management, guiding the executive plans and programs, which are the new behavior is a humane, flexible management style, greater respect for each other's wishes. These situations has given us a revelation that is now greatly changed people's ideas must keep up with this process of change.
I have published a paper devoted too: from the history of the world's political and legal system, the perspective of the development of democracy from the context of direct democracy
to indirect democracy, and then return to direct democracy and a combination of indirect democracy that is consolidated democracy; For the administration, administrative legal practice, as a basis for the legitimacy of the executive
branch is an indirect democracy, representative democracy, the executive is relatively directly participate in administrative activities to be direct democracy, the immediate
administrative practice more and more increase in the direct elements of democracy, the two can be neglected, in close contact with each other, the interactions, the emergence of new democratic forms - a comprehensive democracy, it
contributes to the main body of the contemporary
administration and administrative law theory, behavior theory,
supervision, great changes have taken place in the theory of relief .  This is the focus on the man himself, stressed that the new democracy, our entire development of the
administration or administrative rule of law brought about an effect or a trend. In other words, really more administrative counterpart, subjectivity to participate in the
administration, administrative and legal systems work, this is it to occur, in particular, should be noted that the background or trends.
(B) the efficient management - use of high-tech science and
technology, a huge shock and a profound effect on
The adoption of high-tech administration and
administrative law practice for the impact and influence, and often make people surprise, it is still far from fully
understanding it. Previously thought impossible to achieve, and are often become high-tech active use can be done. For
example, the "electronic eyes", "death calls you", the Chief counterpart credit file database, e-governance information
platform, etc., so that the introduction of its formation a number of high-tech man-machine system that can give the
executive counterpart to give administrative agencies brings a lot of convenience and benefits, but also put forward higher requirements. Not only the field of administrative law, in legislation, prosecution, trial and other legal areas, using high-tech science and technology also have a great impact and influence. Such as online voting, online pursuit, on-line
publication decisions and so forth. For the high-tech, neither
deliberately avoid it, do not expect too much from it, but need the perspective of the scientific development concept to be fully aware of and actively applied. To take into account a balance between fairness and efficiency, both private and
public welfare, human rights and order, these are serious considerations we need to. Of course, fundamentally speaking, flexible management and efficient management is an essential requirement; or that, as a prerequisite for the pursuit of
efficient management of the use of high-tech, you must also
comply with the requirements of flexible management.
(C) ways to innovate - a breakthrough in administrative
reform and innovation, and steady path
Where can focus on the economic and social management
reform and innovation, they have such a statutory authority. Because it does not involve crime and punishment, deprivation of political rights, restriction of personal freedom and the judicial system to retain a strictly legal matter. In which,
relatively speaking, methods, innovation and lower cost point, the risk of even smaller, more stable point, a little more flexible and more easy to operate, it should be as immediate administration of a breakthrough innovation. Of course, institutions, mechanisms, legislation and other innovations in macro is also very important, but more difficult and more necessary to make steady advancement. Based on this understanding, I have been more concerned about some new ways and means of administration used, I think the administration
methods and means can be within the purview of the executive authorities to actively try, widely practiced. In 2004 the State Council issued the "Implementation Outline for comprehensively promoting administration according to law,"
there is such a layer of meaning: the ability to advance, the sound a little difficult smaller, to be more active manner. Article IX which provides that: the process of promoting administration according to law, "to reform the way ... ... full play to the administration of administrative planning, administrative guidance, the role of administrative contracts, etc.." So, I think, a positive use of administrative planning (plan), administrative guidance, administrative contracts, administrative support, administrative incentives,
administrative coordination and other new ways and means of administration, administrative methods should be used as a focal point or breakthrough innovation.
In short, we must adhere to people-oriented, adhere to
the democratic concept of administrative and scientific concept of development, actively adopt high-tech, focusing on
exploring ways to innovate, be flexible management, efficient management, which is the basic direction of administrative reform. That do not comply with this direction of reform
initiatives, seriously affecting people's interests and image
of the government will eventually be denied in practice; if some of the new initiatives in line with this direction, although there may be controversy, you can still move forward
and continue to improve, because Practice is the sole criterion for testing truth. We usually contact with cases, examples, somewhere has done a number of innovations, in fact only a blossoming spray, if you do not see a big trend, you
can not judge Zheduo spray is beautiful or dangerous; only look at Qing this big trend, before we know which duo is beautiful waves, and then in your purview to make such a reform and innovation, so you just lead the trend. For example, placed on file after the needs of sub-contractors,
but in many cases is not a specific legal basis, or conflicts between legal norms, how do you do? This judge is a great test. Some judges are too conservative, blindly ask for instructions, or confused thinking, behavior at random, an
inattentive became a resistance to change; some judges visionary, bold innovation, and the results within half a year year, the new judicial interpretation of them, the basic accepted his views, and even promote relevant laws and regulations introduced. So I am and hope that we have taken note: the administration must recognize the historical stage of reform and innovation and development trends in order to see the "big trend in the spray of the United States." Reposted elsewhere in the paper for free download http://
Third, the fundamental limits of administrative reform and innovation - the rule of law and standards of practice
Several other recent typical case (right) cases, it seems that there are some problems which, in the motivation, or
social effect of the starting point of a problem, it aroused much controversy.  This will require us to reflect on: the executive authorities to promote administrative reform and innovation of the time, and whether there limits? How to
determine its boundaries? Are there some principles to constrain its behavior? My answer is yes.