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On The Legitimacy Of Administrative Legislation

Posted on:2006-07-27Degree:DoctorType:Dissertation
Country:ChinaCandidate:X H CengFull Text:PDF
GTID:1116360155967929Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
In this article, I wan to present a research on the legitimacy of administrative legislation by positive analysis and value analysis, especially the latter, as well as comparative analysis, dialectic analysis, historic analysis, semantic analysis and case analysis. This article studies mainly on the standards of the legitimacy of administrative legislation or how to judge the legitimacy of administrative legislation. So it includes three parts, i.e. the general judgment of the legitimacy of administrative legislation, the concrete standards of the legitimacy of administrative legislation and how to ensure the legitimacy of administrative legislation. And the hard core of this article lies in the standards of the legitimacy of administrative legislation, i.e. the formal legitimacy, the procedural legitimacy and the substantial legitimacy of administrative legislation.Chapter 1 discusses the basic issues and the general judgment on the legitimacy of administrative legislation. First it defines the concept of administrative legislation and probes into its character. It defines the concept in the narrowest sense and the extension with elimination. It discusses the character of administrative legislation in the view of research methods. Administrative legislation has the dual characters of administration and legislation. Secondly it explains the concept of legitimacy of law in the three facets of formal legitimacy, the procedural legitimacy and the substantial legitimacy and discusses the relationship among them. Thirdly it probes into the necessity, the evil and the legitimation of administrative legislation to give an introduction to the whole article.Chapter 2 is about formal legitimacy. The legitimacy of law involves in the source of legislative power, no exceeding one's authority and consistency in the whole system of law and accordingly the legitimacy of administrative legislation includes that of the source of the power of administrative legislation, law superiority and law reservation and the solution of conflicts of law cause by delegated legislation. First I present a new explanation on the theories of delegated legislation and take for that the power of administrative legislation by authority without delegation in China should be abolished for lack of legitimacy. Secondly I discuss the doctrines of law superiority, "according to" , "no conflict to" and law reservation and present a new explanation on them. I take for that the constitutional fundamental rights should have direct effects to administrative power and the "law" in law reservation excludes administrative legislation. Thirdly 1 probe into the conflicts caused byadministrative legislation and their solutions.Chapter 3 discusses the procedural legitimacy of administrative legislation. It mainly inquires into the principles of public participation and open legislation and the system of hearing in administrative legislation. Public participation not only democratizes administrative legislation but also lays its foundation of legitimacy. After explaining the essential requests of public participation and a comparative research, it points out the shortage in public participation in Chinese administrative legislation and puts forward some suggestions on how to enhance it. It also lays emphasis on the importance of open legislation and comments on the state of open legislation in China. It takes for that hearing is the hardcore procedure in administrative legislation. It also brings forward some propositions on how to improve hearing and points out the difficulties in it.The fourth chapter is the most important part in this article. It probes into the substantial legitimacy of administrative legislation. The substantial legitimacy shows both the value of administrative legislation and the main standards for judging the legitimacy of administrative legislation. At first it discusses the moral legitimacy of administrative legislation, i.e. human rights. Human rights are the logical starting points of administrative law, the source and aim of administrative power. Administrative legislation can't limit the fundamental human rights and should confines the non-fundamental rights in a proper degree. It can't limit the citizens' rights and add the citizens' obligations without delegation by law and should control the administrative power to protect human rights. Human rights are the hardcore values in administrative legislation. Next, it inquires into the social legitimacy of administrative legislation, i.e. balance of interests. It differs interests balancing in legislation from that in trial at first. And then it tries to present the standards of interests balancing such as taking into account the elements that should be considered and eliminating the elements that should not be considered, paying respect to all the interests, stage of interests etc. Thirdly it presents a research on the economic legitimacy of administrative legislation, i.e. analysis on costs and benefits. It is very important to improve the benefits of administrative legislation, for all the sources are more valuable nowadays. At last it discusses the ecological legitimacy of administrative legislation, i.e. the harmonious relationship between the human beings and nature. It is the very duty of the government to prevent from pollution, protect the entironment and keep sustainable development, for it relates to the future of the whole human beings.The last chapter studies how to ensure the legitimacy of administrative legislation. It would be only prate without effective ensuring mechanism, so we consider the legislative control and the judicial control of administrative legislation as the indispensable parts of the issue. The people's congress should build up a special organization to strengthen the supervision on administrativelegislation and therefore the Law of Legislation should be amended. It is the chokepoint of the rule by law in China that lacks the judicial review or supervision on violation of the constitution. We should build up the special courts to supervise the violation of the constitution, enhance the independence of the judicial power and reinforce the judicial review.This article tries to innovate the theory and the system of administrative legislation and the supervision on it. It also wishes to be helpful to promote the legitimacy of administrative legislation in China.
Keywords/Search Tags:administrative legislation, legitimacy, formal legitimacy, procedural legitimacy, substantial legitimacy
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