Of multi-dimensional perspective from the concept of contract to establish the legitimacy of the administrative law
Paper Keywords: administrative law concept of contract of democratic administration
Paper Abstract: The effective functioning of the executive power
is the means and all the non-power means of flexible, integrated
application, it requires a comprehensive variety of administrative concepts and legal concepts for their support. Compact as a means of more as a concept, its strong penetration increasingly evident, not only in the political, economic, social and many other areas of dazzling, but also in administrative activities, also showed its unique charm. The introduction of the concept of contract in China's administrative law, will not only
have extensive administrative means to promote the democratization process in the administration of practical significance, but also has a theoretical ground-breaking, with the change of concept.
Today, the administration is no longer a single color picture, but colorful; in the road leading to safeguard people's rights, the administration indicated on the pictures is not just a way to power, it is displayed in front of more than one road. The effective functioning of the
executive power is the means and all the non-power tools (mainly
contractual means), a flexible, integrated application, it requires a comprehensive variety of administrative concepts and legal concepts for their support. Compact as a means of more as a concept, its strong
penetration increasingly evident, not only in the political, economic, social and many other areas of dazzling, but also in administrative activities, also showed its unique charm, combined with the administration, the more to more closely. Concept of contract in China in
the introduction of administrative law, administrative law scholars in China should be taken seriously and discussed the major issues. This subject will not only have extensive administrative means, to promote the democratization process in the administration of practical significance, but also has a theoretical ground-breaking, with the change of concept.
Concept of contract to establish the significance of
Concept of Contract and modern administrative concepts are not
heterogeneous but homogeneous, not conflicting, but can integration. Modern administration, is the democratization of management, between government and citizens is the fruitful cooperation is an effective public services and government law and human rights respected. The pursuit of
modern administration is 'good governance' (good governance), while the 'good governance' is the essence of government and citizens in public life, co-management is to achieve the best interests of both sides.
Contains the concept of contract was to respect the right personality, an independent subject of human recognition of the interdependence of
recognition, which focuses on equality and mutual benefit and reciprocity, mutual cooperation and consensual, agreed to the price of notions such as
honesty Promise. Can be seen, both in terms of quality that has identity. This identity, in order to establish the possibility of a combination of both.
Established in the administrative law concept of contract is to
improve administrative efficiency, to make up the executive power means lack of management, extensive administrative form of a contract means to guide the spirit of contract administrative activities. Contractual and administrative integration of the characteristics of modern
administration; concept of contract with the 'effective administration' meet the requirements, and the modern countries in the world of the administrative reform and 'good governance' concept is the same. Concept of contract establishment, that is, the modern concept of contract
administration concepts and combine. Combination of the two is based on the length of contracts to make up traditional administrative weaknesses and adapt to modern administrative needs. As the concept of contract and
the modern administrative concepts homogeneous, and their combination will bear abundant fruit, so that administration to achieve the Government and the people are satisfied with results. The establishment of contractual concepts, not only has a positive effect on the administration, but also on the administrative law have far-reaching significance: on the one hand,
due to contracts with a convenient and easily accepted feature, which allows the executive is the administrative law norms through contract
approach can be widely publicized, so that administrative laws and regulations specific, and the Chief counterpart commitments; the other hand, contracts in the application of administrative law, it is not only a means of significance, it will help a deep concept of contract implanted
into administrative law. Has the contractual nature of the concept of equality of rights concept, the concept of free will (or voluntary concepts), obligations, the notion of responsibility, honesty and sense of credit, as well as the concept of legal constraints and so on, once to take root in the administrative field of administrative law of the human spirit will be more rich and has a charm, will have gained administrative access to the flourishing and development.
Thus, the concept of contract is established, not so much a means of borrowing, as it is the management and institutional revolution, it will lead to the legal system and the concept of change. As a result, we should not only implied in the concept of contract and have a deep
understanding of modern administration has a clear grasp and understanding, but also for such legal and cultural attitudes do change on a theoretical preparation.
Concept of contract to establish a legitimate reason for
Administrative needs of contract idea, that they are indeed legitimate and sufficient reason, these reasons are mainly from the following.
(A) the limitations of the means of power
Traditional administrative, that is only a means for the executive
powers on the executive, it emphasizes the executive to the citizens of domination, an executive of the main side of the unilateral will of nature, emphasizing the mandatory administrative acts, but the will of the citizens has not been sufficient attention . If, however, depends only on the means of power or authority under the concept of engaging in
administrative activities, at least some limitations or disadvantages of the following:
1. And contrary to the underlying spirit of modern administration.
Modern administration is a democratic administration,
participation in administration, procedural emphasis on civic participation in the administration and its increasingly high degree of democratization. In such an era of democracy, if only to take power
approach to decision-making or administrative decisions, it contrary to the democratic administration, but also with the Government's role and responsibilities of the violation. It deprived the administrative relative of one's own affairs, say the relative who did not respect the executive the right to participate, so do not feel the administrative counterpart of the real existence of their democratic rights, it will not only reduce the administrative activities of the democratic quality and administrative
quality, but also to make administrative decisions in people's minds to lose their proper authority, acceptance and support.
At the same time, the power-oriented executive with the co-
administration, services, goes against the thrust of the administration. Modern administration, not the authoritarian executive, the executive power, but co-administration, service administration. People not only dependent on the executive, the executive is more dependent on the people.
The relationship between the government and the people, the government can not do without the people, left the people then the Government would no longer be 'people's government'. The Government and people of both independent and dependent upon a partnership, are friends not enemies.
Therefore, the effect of administration depends on the administrative body and administrative counterpart of the relationship, it depends on the administrative counterpart of the cooperation and support. At the same time, the Chief's mission is to serve the people, serve the public good. The executive is not a lofty bureaucratic bureaucratic, not above the people on the authoritarian machine, the relationship between them is not to deprive and blackmail 'oil-water' relationship (profiting from the
people at), but the solidarity of 'fish and water' the relationship between . The executive authorities should be the people's service, it should straighten out their own position and role, service to the people, not by virtue of the power to suppress or even looting was the manager.
On the other hand, the power in administration may lead to arbitrariness of personal despotism. China's administrative organs at all levels to implement the 'head responsibility system'. Despite the emphasis
on the principle of democratic centralism, but in fact the executive power tend to be concentrated on the head of one, almost all decisions are from head of one person. If his personal qualities, knowledge and leadership skills to their positions do not match, then the leader will not only lead to arbitrary individual, so that the executive body of the organization are violated, but also against the rights of citizens and the public interest.
2. Increase the administrative costs and reducing administrative
Mainly or entirely on executive power means to achieve
administrative purposes, they are bound to expand the administrative organization and personnel, increase the corresponding physical device or means, and subject to 'strengthen law enforcement efforts'. If the parties do not perform administrative obligations or not from a little on the use
of power tools, will inevitably increase the administrative costs, but also reduces the administrative efficiency and performance. If at every
turn by virtue of the power tools, administrative counterpart 'cold, horizontal, hard, red', 'do not explain, do not tell', mechanical law enforcement, simple and rude, the parties will certainly be a greater resistance; while in order to enhance the so-called administrative
management effects, the executive could only continue to seek even greater power, the cost of growing and sometimes temporary effect may be played, but in the long run, as if through the use of opium to cure the same
efficiency would be getting lower and lower, the result would be counter-
productive, forming a vicious cycle of cost-inefficient. Administrative
organs may order that citizens have from time to obey; administrative authorities can use enforcement tools, citizens can also be resisted.
Citizens of non-voluntary action to achieve the objectives of the
executive administrative obstacles, so that greatly reduced the effectiveness of the administration.
3. Likely to breed hostility or not law-abiding consciousness.
If you rely only on the unilateral order of means to pursue their management, can lead to terrible consequences: First, regardless of whether the recognition and acceptance of civil decisions of administrative organs and administrative authorities are forced to obey,
so, just between the government and the people formed a indifferent or even hostile divide between this conflict may ultimately evolve into 'to violence with violence'. If the people are generally not subject to, while
the Government has started to implement through the means of power, then the executive will become a 'naked tyranny'; 2 is that if people are generally not subject to, the power tools alone will not be able to implement the law and the implementation of administrative decisions, the
law become a 'IOUs', law and the government's authority is also this 'IOUs' slowly lost. As a result, the law is that people are increasingly feeling weak, more and more contempt for the authority of the law and form a vicious circle. (Note: see 'On the lease, the introduction of administrative law', ''2002 China Law No. 2.)
(B) the functional advantages of contract
And power in administration mode of limitations and drawbacks of the contrary, the contract, if combined with the administration, you just can make up for shortcomings in the administration of power. The introduction of administrative law will be among the contract, with the following functional advantages:
1. With a response to the development of contingency capabilities
of modern administration.
Modern administration has not limited the scope of the order of administrative areas, paid administrative areas, the existence of public property management and development of the lease, which is undoubtedly the
use of these areas has provided a broad space and performance stage; modern democratic administration, emphasis on civic participation administrative process, but contract is based on the two sides (or multiple) dominant position of equal dialogue, consultation and meaning
the same, therefore, from this sense, the contract process is the democratic process, which fully embodies the essence and characteristics of democracy It is the democratic color highlights; modern administration is to serve the executive, with the ultimate aim of the service of citizens, serve the public interest, while the contract through equal
consultation, communication and dialogue, etc., displaying the citizen participation, administrative services to the people of color. Modern
administration with the premise of the statutory discretion, initiative and dynamism, while the contract not only with the 'law' has the compatibility, but also as a non-power mode, more in line with the
administration of these characteristics. With the contract means the
executive authorities in the administrative counterpart of the participation and coordination with the flexibility to respond to the administration of the process appears complex and difficult to foresee changes in the social problems.
Traditional administrative power is mainly through means of a single administration, a single means not only can not meet the modern democracy and modern administrative requirements, but also brought back to the administration of rigid mechanical, Chen ugly atmosphere of the same conservative bureaucracy. People will stand due to a foot long and rigid administrative body in the management of the power only to take a single approach will be to their own rigidity. When people are faced with new
issues, particularly complex situation Quewu new tools are available, they also inevitably difficult to cope with new situations, the administrative functions hard to achieve. Contract for the administration provides a new solution, a new alternative, a new choice of means, the executive can be made more flexible use of discretionary contracts, which change positions like sleeping, eating the same as changing tastes of the normal and necessary, ' It's like people who climb mountains in order to recover
their strength back for a while, done in different parts of muscles. '(Note: [English] Ludwig Wittgenstein:' culture and values', Huang Zheng-
Dong, Tang Shaojie translation, Tsinghua University Press, 1987 edition, p. 38.) In order to achieve the purpose of administrative and legal
purposes, Administration can change position to sleep like a human, as the requirements for different situations have been changing the way in which the executive, who can be more flexible and dynamic and productive.
2. Inspirational features and capabilities to reduce
Contract may be combined with other means so as to constitute incentives. Contract in the 'incentive contracts', the study of modern contract theory, an important area. 'The so-called incentive contract is
the principal use of an incentive mechanism to induce an agent to act in accordance with the wishes of the principal terms of a. '(Note: [the U.S.] Kesihate, Stiglitz et al:' Contract Economics', Li Feng Lord's translation, Economic Science Press, 1999, p. 16.) Incentive contract applicable not only to market competition, Among the administration can also be used, it can promote the completion of administrative tasks and administrative functions of a positive implementation. Contract as an
incentive of administrative means in practice can be widely used and known, is the U.S. electric utility sector, the widespread practice of 'social contract, said cost adjustment system or contract' (Social Contract). In such contracts, the administrative authorities and between the system being regulated in the revised fees and charges, on the equipment operation rate, thermal efficiency, fuel, purchased electricity prices, construction fees, signed a contract, if we can achieve a good
result than the contract would be rewarded, or punished. (Note: This administrative means, public interest in the U.S. states with the executive branch has all the characteristics were different. For example,
Arizona's executive branch since the beginning in November 1984 asked the
State Public Service Company to improve its power sector equipment operation rate on the adoption of the following specific systems: first, to equipment operation rate of 60% to 70% as the benchmark, if the device within the operating rate in this benchmark is not given a special reward, when the equipment operation rate of 75% ~ 85%, it will be equipment operation rate due to increased fuel cost savings of 50% of compensation paid to the company (the remaining 50% reduction to the consumer). When
the equipment operation rate of more than 85% or more, the company would get all the fuel savings resulting fee. On the contrary, when the equipment operation rate of 50% ~ 60%, the resulting increase in fuel costs of 50% of the burden of punishment by the company. When the
equipment operation rate is only 35% ~ 50%, this increase in fuel charges were all made by the burden of the company. Finally, when the operation rate does not reach 35%, the competent authorities should consider re-
valuation of the base. See [days] grass beneficial 'Micro-Economics of
Regulation', China Development Press, 1992 edition of , p. 159.)
In the administrative relations, the executive authorities and citizens have to pay a cost, one side is the executive administrative
costs, it is the right of citizens to obey the party cost or the cost of co-operation. Administrative costs include the cost of administrative organization, administrative decision-making costs, administrative
implementation costs (Note: see [Germany] Kasper, Streit 'Institutional Economics: Social Order and Public Policy', Han Chaohua translation, Commercial Press, 2001, p. 156.) If you apply the power of administrative resources as a link to the organization but are not citizens, cooperation
and obedience, the executive would have to consume a much higher cost resources to force the citizens to obey, administrative costs will be the implementation of decisions due to lack of citizenship take the initiative to meet the high. Although the application of contract also requires co-
payments for a certain transaction costs, but with the power of administrative costs compared to consumption is much lower. Contract is both desirable and administrative counterpart would consciously agree to comply with contract because the contract itself is its true content of the expression of the will of contract compliance in line with the wishes and interests of their own requirements. Thus, although the executive has paid a contracting costs, but relative to the compelling cost, because it
was recognition of the administrative counterpart, voluntary obedience, thus saving the administrative resources, reduce administrative costs. Can be seen that compact would have lower administrative costs, increase administrative efficiency features. Under the contract administration, administrative activities can be more efficiency, can reduce or promptly resolve administrative disputes, so that administrative decisions, timely and effective implementation, thus avoiding time and money, a waste of
manpower and material resources in order to obtain the best possible at minimal cost administrative efficiency.
3. With the resource allocation optimization.
Administrative measures are mainly three types: First, the
unilateral approach the command means that the executive power, and second, administrative guidance means and the third is a contract. The latter two methods are the property of non-power tools. Unilateral orders
are the means and methods to guide the allocation of resources means, but
they are in resource allocation, there are still more restrictions.
Unilateral measures, as previously ordered the drawbacks referred to Chen as it is to consume more of the costs or it may have benefits (not executed). If the unilateral decision, in order to achieve the fulfillment purposes, and then take a mandatory solution would only be satisfied with the executive of the main party; if the problems are not resolved or decision can not be implemented, would have been completely non-effective.
The cost of administrative guidance was low, but not legally binding, nor the responsibility of terms and conditions, their effectiveness depends entirely on the attitude of being guided.
With unilateral command and administrative guidance as compared to
contract (including the negotiations, consultations, etc.) methods are more efficient means of resource allocation. Negotiations based on Coase's theory: (1) Voluntary cooperation is the best way to achieve efficiency, (2), but in fact there are many factors that impede the voluntary use, therefore, (3) shall be carried out to overcome the factors that hinder the negotiations in order to restore efficiency. (4) to restore the efficiency of various pathways on, he can promote a voluntary cooperative
arrangements the parties is the best. Contractual relations link point is to seek maximum benefits for each side of the main result of that cooperation is involved in the talks, the balance between the interests of the maximum. (Note: See Wei 'rational choice theory and law and economics of development', 'Chinese Social Sciences '2002, No. 1.) Contract means that mutually beneficial interaction, both in content and enjoyment of the rights and obligation and responsibility bear. Once the contract being
applied to the executive, which will not only help to reduce administrative costs, but also has the obligation and responsibility requirements (contract must be compliance), will help the establishment of responsible administration. Contract can be achieved by the parties to
reflect the consensus of their respective interests, acquiring an interest on the 'win-win' and multi-effects ( 'Pareto optimal'). Contract is with the Chief of the main and the executive to pursue the best interests of
the relative configuration tools; achieved through contractual cooperation, the two sides seek to minimize transaction costs and path.
4. Has a right to maintain good cooperative relations between the functions.
First of all, the use of contracts to help the Chief of the main and the executive is relatively good relationship between the establishment. Contract is something the two sides, which means that at least two parties must be between the main body; contract that the two sides will, to some extent the participation and views of the two consensus. The lack of a party, a contractual relationship would not exist, there is no unanimous opinion there is no contract be established. Contractual relationship is the kinds of interdependence and mutual
cooperation. Thus, the contract application, can enhance the trustworthiness of administrative acts and acceptability, so that not only avoid many potential conflicts or litigation, but also improve the administrative body and administrative counterpart relations, so that they
can set up between the co-operation, mutual trust between the positive
Second, the contract also with the Chief Executive of the main people's relationship to the relatively stable and sustainable. Once the
contract has been applied to the administrative area, it will inevitably involve two parties (or multi) Subject: The Chief of the main and the
executive relative, other administrative body and the executive or administrative counterpart relationships between the main body. Once the
treaty, in general, from the agreement until the realization of the agreement, both indicating that they have a 'contractual relationship', the two sides will maintain the contract to maintain a sustained and stable cooperative relations, thus contributing to the executive order and the stability of social order of. Moreover, in administrative relations, the administrative body and administrative relationship between the relative, not the kind of 'a hammer' the sale, but a long-term
relationship, the two sides through the contract to establish a more solid, stable and lasting relationship between the .
(C) the pursuit of modern administration
The administrative operation of the national history, can be divided into the following types: First, the executive power, namely, unitary executive, it is only relying on the power to rule; 2 is a pluralistic administration, that is, from the executive power to 'control' (governance); Third, good administration, that is, from governance to
achieve the optimal administration: 'good governance' (good governance). A modern democratic state administration, mainly for the pluralism and that co-administration, but also is pursuing the 'good governance' objectives.
Modern administration, is the management of public affairs is a kind of 'governance', which with the rule (government) is different from the mean is a common goal of supporting the activities of the main body of these management activities is not necessarily the Government, nor to be
relying on the state's coercive power to achieve; (Note: See Yu Ke-ping
editor of 'governance and good governance', Social Science Press, 2000 edition, p. 2.) as a society - control system, which refers to the
Government and the private sector, public sector and private sector cooperation and interaction; as the new public management, arguing that the market incentives and private sector management methods into the government's public services; as a self-organizing network, it refers to
is based on trust and mutual benefit social cohesion networks. (Note: see [United Kingdom]罗伯特罗茨 'new governance', wood easy to compile, set YU Ke-ping editor of 'governance and good governance', p. 89 ~ 96 pages.) As a result, can be said that the administration is not just the state power problem, that is not the only means by virtue of the power to solve problems. In addition to the means of power, it can help a lot of non-
power means to achieve administrative goals. 'The ability to run things is
not the Government's power does not lie under the order or the use of its authority. The Government could use new tools and techniques to control and guidelines; the government's capabilities and responsibilities are in this. '(Note: [English]格里斯托克 :' As a theory of governance: five
points', China wind compiled, containing YU Ke-ping editor of 'governance
and good governance', p. 34 ~ 35 pages.) Can be seen, modern administration 'governance' demands and by the spirit of the contract,
such as a voluntary, cooperation, trust, mutual benefit and so on, have a commonality and integration of. Thus, from the modern administrative point of view, the introduction of the concept of contract is entirely justified. Administration of 'good governance' objectives are and contract
value of more coordination and harmonization.
'Good governance' to emphasize that the democratization of management is between government and citizens of the fruitful cooperation is an effective public services and government law and human rights
respected. 'Good governance' is the essence of government and citizens in public life, co-management, 'good governance' that the realization of successful cooperation between citizens and government is the key of citizens in the administration. Only the administration of the participation of citizens in order to form a government and citizens jointly approved by the executive authority, in order to achieve good administrative order and social order. This shows that the administration
of 'good governance' pursuit and contract with the same values and consistency. To unify the two, both the requirements of modern administration, but also reflects the spirit of contract extension.
Complex and diverse administration would make the executive
agencies in the pursuit of co-operation with citizens (rather than
confrontation), and citizens to establish a good and stable, long-term
partnership. Cooperation between the executive authority is only one of the parties, it must rely on other subjects (organizations and citizens) and other social resources, in this case, the top-down orders, as well as
the extent of force will thus weaken the power of color will be more desalination. Reposted elsewhere in the paper for free download http://
(D) a worldwide trend and development requirements of
1. An international trend.
From a comparative point of reference and 'globalization' of the historical background of view, lease, the establishment of administrative
law, has become a worldwide trend and the inevitable trend. From the major democratic countries (whether civil law countries or the common law countries) and China's Taiwan, Hong Kong and Macao regions, the situation (Note: the foreign and China's Taiwan, Hong Kong and Macao regions lease, the application of administrative law cases, the author of ' On the lease, the introduction of administrative law 'have been made introducing a text is not reproduced here.) as well as the pressure after China's accession
to the WTO and many other point of view, the pressure from the outside world has shown concept of contract and the contract means in our country administrative law to establish the necessary and wise.
From a comparative perspective, we can find in China (mainland)
administrative law concepts in the lease and contract system is blank. If there is no corresponding system of concepts, as well as between different parts of the dialogue in our country I am afraid that will be difficult.
Today, economic globalization is driving the world's governments in the political, legal, seek closer exchanges and cooperation in the coordination between the legal system is increasingly becoming the international trade and investment activities, an important factor, the
administrative law has become an international trade and investment in the legal system an important component. 90s of the last century, in a series of Sino-US trade between China and Japan bilateral agreement also contains important elements of administrative law, the Japanese government even promised to modify its administrative procedure law. (Note: see [the U.S.]恩斯特盖尔霍恩 , Ronald M * Levin, 'Administrative Law' (English), Law Press, 2001 edition, 'Preface', p. 3.) China has also with the United
States has repeatedly reached a memorandum of market access, which are of the legal system brought about a certain influence and impact. Moreover, in a series of WTO agreements and China's WTO Accession Protocol, the administrative nature of the norms of living in a prominent position, occupies a large proportion, it requires decision of our government should
follow the equal, fair and reasonable, open and transparent principles, WTO trade policy review mechanism, dispute settlement mechanism that can
be included on China's laws, rules, regulations and other administrative actions to review content. In this sense, it can be said has gone beyond the boundaries of administrative law. A country's administrative actions, is likely to be another country's government or business focus of
attention could also become a WTO review. In such a context of globalization, there is no contract system and the administrative law concept of contract, not only incompatible with the global trend, but also may be required by WTO rules of equality, fair and reasonable, contrary to the ideals of openness and transparency.
2. The development requirements of administrative law.
Law is a manifestation of spirit of the times, law should also reflect the requirements of the times, France is only with a country's economic, political, social and culture fit, and social development to keep pace, it can have the vigor and vitality. As a standard administration, administrative law, and the administration is bound to
change and meet the requirements. 'Each has produced a body of legal needs of the times, but age is a constantly changing, so the law must be changed. '(Note: [Germany] Wei Lianwei Gatlin:' guarantee of harmony and freedom ', Sun is out translation, The Commercial Press, 1960 edition, p.
79.) Precisely in order to meet the needs of the times, contemporary national administrative law, not only on administrative contract (or the public contract) special provisions, but also integrated into the concept
of contract, such as the regulation of approval of the executive relative who agreed that in the administrative activities, in consultation with citizens in the administrative procedures to encourage citizen participation, in the dispute to allow 'reconciliation' and so on, are all
embodied the spirit of contract exists. China's administrative activities, not only the actual form of a contract already in existence, but there are many 'abnormal' forms of existence of the contract, these contracts are that spirit in the strong infiltration of administrative law practice. Administrative law shall be response to such requests, erected the banner concept of contract.
From the adjustment of the object and methods of administrative law point of view, the Chief of the main and the executive relative person the reality of multiple relationships require diversification of administrative adjustment method. Administrative relations both from the exercise of power formed between them and also because of non-power mode,
especially the formation of contractual arrangement and the relationship between the corresponding administrative law power adjustment formula must also be changed. Not only have the powers of administrative law should also have a contract adjustment formula, and other non-power mode, it
should have civil rights, public interest, democracy, freedom, justice, responsibility, diversity values. In the modern administrative relations, the role of the relationship between citizens and the government complex:
citizens are the recipients of public services, from this point of view of requests for government services; citizens of public services is also a partner or participant in, their behavior on the performance of public services, having an impact; citizen is also a public service supervisor,
is responsible for overseeing operations of the Government; Similarly, the citizen is the bearer of obligations such as taxes. The Government is not only a provider of public services, but also regulators, entrusted with