The Rule Of Law In The Context Of Administrative Laws And Regulations Conflict Research

The conflict of administrative laws and rules is an inevitable phenomenon in any countries ruled by law.In the process of building the legalization system in China,attention should be paid in particular to properly coordinate the relationship between administrative laws and rules, prevent and resolve the conflicts actively,to maintain the legal unity and internal harmony in the legal systems,and provide good legal environment for our country's building of the rule of law.And to realize the above goals, we should emphasize on seeking the root causes of conflict and its fundamental solution.This paper,by conjoining research results of the conflict theory of sociology,and comparing the conflict resolution mechanisms between foreign and domestic legal norms,is researching the relationship between the development of the rule of law in our country and the conflict administrative laws and rules,and explores,by the entry point of benefit analysis,the root causes of conflict,and the fundamental way to resolve the conflict in China.This paper,entitled "Study on the Conflict of Administrative Laws and Rules under the Background of the Rule of Law - Taking the Perspective of Interests Analysis",is divided into six chapters.And the main contents are summarized as follows:Chapterâ… ,"The theory of conflict of administrative laws and rules."Conflict is an inevitable social phenomenon generated with the begins of human society,its function should analysis dialectically,we must note its damage,while not ignore its positive promotion to the development of society.Comparing with sociology,the research of Legal Science concerns more on the control of conflict because of the different perspective.This is,on one hand,the law's effective prevention and regulation to the social conflict as a means of social control;on the other hand,the regulation to conflict within the legal system internally.The effect of the former depends on the degree of realization of the latter,therefore, there is very important significance for the establishment of the rule of law and the stability of society to prevent and resolve the legal conflict.The legal norms that conflict is the phenomenon that two or more administrative laws and regulations adjusting of the same legal relationship have contradiction on the effectiveness because they different in contents.From the extension,the conflict of the administrative laws and rules in China includes the conflicts among constitution,laws, administrative legislature,administrative normative documents,legal interpretation,written basic principles of the administrative laws,and regulations of social organization.Chapterâ…¡,"Conflicts of administrative laws and rules and the development of the modem rule of law in China." The development of the rule of law is with background of certain times characteristics,as well as China.The development of the rule of law of China was deeply era imprinted by social transformation,the structural changes as well as the building of a harmonious society in China,and the conflict of administrative laws and rules as a legal phenomenon is inevitably linked with the background of the development of the rule of law.The social transformation and system changes brought about by the changes in society as a whole to increase the legal uncertainty,the conflict of administrative laws and rules also occur frequently,and the goal of building a harmonious society also requests that the conflict have to be in the reasonable control, so it becomes particularly necessary to control the conflict of administrative law and rules.There are some elements have to be achieved to realize the rule of law,including unifying the system of administrative law,realizing the value of the rule of law and legal authority,and implementing the laws effectively,the conflict of administrative laws and rules presence more or less on the realization of these conditions,this is also why the control to the administrative laws and rules is needed.Chapterâ…¢,"Comparison of the abroad conflict of administrative laws and rules resolution mechanisms."The development of our rule of law is later than the developed countries.But as developing country in the process of building the rule of law,China can take full advantage of "late-developing advantage",and refer to the successful experience of foreign countries scientifically,which will contribute to the establishment and perfection of the effective resolution mechanism for the conflict.This chapter compared and analyzed the comprehensive adjustable mechanism of the conflict in advance,in the matter and after in the United States, Britain,France,Germany and Japan.All countries have the prevention and resolution to the conflict through the dividing of the legislative jurisdiction, legislative procedure,law applicable rules and system of review of constitution violation.Because of the differences in national conditions, there are characters of conflict resolution mechanisms in each of these countries,which provide more experience to China to take reference.Chapterâ…£,"The root of conflict of administrative laws and rules -conflict of interests." "Everything that the people are fighting are with their own interests",Marx's phrase revealed the root of the conflict.Conflict of interest is the root cause of both social conflict and the conflict of laws. There are causal links between law and the interests,interests determine the creation,development and change of law,and the law plays a dynamic role on the formation,realization and development of interest.The links between law and the interests decides that the law could coordinate and balance the interests which it's protecting,and the conflict of interests is the real cause of conflict of laws.By clarifying the interests among the conflict of administrative law and rules,we can recognize more clearly about the crucial role of the interests in the conflict of administrative law and rules.Chapterâ…¤,"The resolution mechanism of conflict of administrative laws and rules in our country at present." Although the experience of foreign countries brings the reference to us,but the design of a nation's system have to be based on their own conditions.Under the background of social vicissitude and the conflicts of interest intensify day by day in our country,we should pay more attention to preventing the conflicts of interest which is the root of the conflict.However nowadays our country also takes resolution mechanism of the conflict in the matter and after as key point, and the conflict resolution mechanism is far from perfect.We need to reflect on issues like the difference between location-vacancy of legislation and the conflict of law,did the executive rules expire after their higher rank law failure,the main application of rules of "the higher rank law's effectiveness is higher than the lower rank",the identification to the legitimacy and justifiability of the higher rank law.In addition,the roles of conflict resolution mechanism also worth pondering,like the system of review of constitution violation,The dividing of the legislative jurisdiction, the establishment of legislative procedures,interpretation of law,shortage and perfect of legislative recording review and cleaning up the laws and rules,etc.Chapterâ…¥,"The root resolution to the conflict of administrative laws and rules in our country."There are various norms of conflict of administrative laws and rules,and accordingly,their solution has presented a variety of characteristics.However,we could only remove the foundation of the conflict of administrative laws and rules by find out the fundamental way.Corresponding to the underlying cause of conflict,the interests' constraints and coordination will be one of the fundamental ways.The constraints refer to the improper benefit,and coordination is for the proper interests.In addition,the "power" which is linked closely with the "interests" also needs to be standardized,so to divide the legislative and integrate the executive power is another fundamental way to solve the conflict of our administrative laws and rules.