The Generation Of The Benefit Oriented Administration Concept In Administrative Law And Its System Construction

This paper is, in the field of law, a new attempt to study the idea of administrative law from the point of administrative power and administratee right, and tends to construct and improve the relative systems of administrative law on the basis of new concept. Studying the concept of administratve law should rely on the theoretical basis of administrative law. Since administrative law became an independent subject in 19th century, there have been various opinions concerning its theoretical basis, while it basically developed along the main line of Management theory, Power controlling theory, and currently becomes the theoretical basis of administrative law. This thesis, based on the Balance theory, provides a new road to make the virtual balance between administrator and administratee, and raise the benefit oriented administration concept. In the author's opinion, after the goal of building a harmonious society was putting forward, focusing merely on the balance between administrator and administratee is not enough to respond to the society's needs. Only administratee is given more care under the Equilibrium theory scope, the balance between administrator and administratee can be achieved in reality and the goal of a harmonious society can be reached. In China, for a long time, the planned economy system has strengthened the management power of administrator, while the notion of"official-standardized"consolidated the"management"role of administrator, which goes against the tendency of service-oriented administration, is contrary to the development of the national democratic legal system and conflict with the concept of giving full respect and guarantee to right. All those decided the inevitability of changing old administrator-oriented thinking. Therefore, it has significant meaning to study how to change the role of the administrator from"managing"to"providing service"and advocate the benefit oriented administration concept. The thesis attempts to take benefit oriented administration as a new idea of administrative law under the frame of balance theory by re-analyzing administrative law. Meanwhile, it defines the basic meaning of benefit oriented administration, which supports the new concept in legal theories, and restates the feature of administrative behavior at the guide of the concept of benefit oriented administration to seek a new way of improving administrative law system.The core viewpoint of this article is that, under the background of building a harmonious society, as the fundamental theory of administrative law, balance theory upgrades the administrator's position, and raises the new concept of benefit oriented administration at the view of relationship between power and right. The theoretical basis of the benefit oriented administration concept includes balance theory, public service theory and franchise.China's current market economy, government structure revolution, the wake-up of attainder and the practice of building a harmonious society provide realistic conditions for the generation of the benefit oriented administration concept, which lies on balance theory, public service theory and franchise theory. A series of issues, such as administrative law system, administrative purpose and administrative mode, have changed: administratee becoming the core of the system, administrative purpose changing from order administration from service administration, administrative mode from negative mode to positive and administrative means from commentary method to non-coercive method. The concept of benefit oriented administration is bound to raise new requirement to the administrative law system, which is to embody the benefit oriented administration concept in relevant systems. According to this dimension, the author aims at the typical administrative service behavior including administrative guidance, administrative contract, administrative award and administrative mediation system, etc. and proposes the measures of improving the current deficient system.Apart from prolegomenon and conclusion, this article includes four parts.The prolegomenon contains three parts: firstly, the author explained that the benefit oriented administration concept is generated from the perspective of relationship between the power and the right, pointing out the idea responds to the basic request of power serving for the right, which is the inevitable development trend of administrative law. Secondly, the author introduced the present research situation of administrative law concept in the contemporary academic field and its deficiencies as well, and indicated that there is no systematic study on the idea of administrative law. Thirdly, the author generally introduced the core viewpoint and logic of argument of the thesis, and then described a whole blueprint of the article.Chapter one described the theoretical basis of the benefit oriented administration concept. Based on the theory of administrative law—balance theory, the author pointed out that"structural dynamic balance"is the theoretical source of administrator when administrator provides service for the administratee and benefits people.Starting from the service administration of"survival care"raised by Fosttal, a Germany administrative law scholar, this thesis, absorbing the administrator's service spirit in public service theory and the theoretical core that it is necessary for citizens to participate in administration citizen, which has been stressed in civil rights, takes the"survival attention"responsibility of the government and citizens'participation right as the two pivots of the benefit oriented administration concept. The author explained the theoretical sources of the benefit oriented administration concept, discussed the theoretical evidence on which benefit oriented administration relies, thus provided theoretical support for the rationality and justification of the generation of the benefit oriented administration.In the second chapter, the connotation of benefit oriented administration concept was analyzed. Understanding its basic meaning by semantics analysis method, the author pointed out that, benefit oriented administration is a request to administrator about the thinking mode and behavior manner in the process of administration. It is requested that when carrying out administrative behavior, administrator should provide help and convenience to administratee as much as possible in line with the idea of serving people and giving survival care to administratee. It is emphasized that the word"benefit"of benefit oriented administration, based on equal treatment, offers service and convenience on the premise of respect, tolerance, and understanding, and clearly separate"benefit"from"bestow".The benefit oriented administration concept is not only embodied in the administrative service behavior, but also has the guiding significance to administrative management, embedding management in service. The core elements of benefit oriented administration concept include the service spirit of administrator, citizens'participation, fairness and justice, help, convenience, and supportability. Based on the demonstrations above, the feature of administration behavior in the benefit oriented administration concept was further explained: the service of administrator, negotiability of administrative process and citizens'participation, active payment and limited interference of administrator, benefit and loss compensation resulting from administrative behavior.Chapter Three explained the generation conditions of the benefit oriented administration concept, and analyzed the value of it. The author presented the generation conditions of the benefit oriented administration concept through the following four aspects: market economy system prepared economic conditions; government reform prepared political conditions; the initiation of citizens'right consciousness provided ideological conditions; the goal and practice of constructing harmonious society provided superexcellent opportunity. Under the specific background of time and space in China, the value of benefit oriented administration concept lies in the following aspects: providing new mode for the harmony between the government and citizens, providing new path for the optimization of administrative power and providing new perspective for the improvement of the administrative law system.Chapter four spreaded out exposition on how to improve the administrative law system under the benefit oriented administration concept. Regarding the effect of benefit oriented administration concept on administrative system as the breakthrough point, the thesis is seeking ways and methods to improve the relative systems of the administrative law, looking for a way out for the implementation of benefit oriented administration concept in order to give a help to practice. The concrete contents include: Improvement of the administrative guidance system emphasizes the construction of administrative guidance basis, administrative guidance procedure and its supervision relief mechanism. Administrative contract system must be built and improved through the aspects of administrative contract law evidence, openness and desirability in contract making, and restriction on the privileges of administrative authorities, etc; Improvement measures of the administrative award system include establishing clearly the award basis and its procedures, and strengthen the supervision responsibility of award giving entity to make sure award correctly and properly to avoid misleading the public and damaging their interests; Improvement measures of administrative mediation include expanding the mediation scope, making clear mediation process and endowing mediation agreement the legal effect; Improvement measures of administrative information providing system include guaranteeing citizens'participation right, improving the information providing ability of administratee, and strengthen the supervision mechanism.In the part of conclusion, the author generally expounded the core point of this article, and showed once again that the reason for government's existence is to offer citizens help and care. The administrative process is to provide service to administratee. Serving the people and benefiting the people is the eternal theme in administrator's responsibilities. With the benefit oriented administration concept, negotiability of process, benefit-granting and service of purpose embodied in administrator will respond the social needs better so as to achieve the goal of building a harmonious society in the frame of administrative law.