Political Transition And Administrative Adjudication

The administrative trial in our country, which originated with the political reform launched by the late Qing dynasty, was not in fact an accidental coincidence. It was the result of the division and check of power in the western countries. The division of power was to prevent despotism and dictatorship, for "when the powers of administration, legislation and judicature were in one's hand, be it a man, a minority or a majority, hereditary or self appointed or elected, it was to be determined justly as a tyranny." The power therefore shall be divided and shall be checked for those who have these powers tend to abuse them. Administrative trial was thus created by men on the basis of the historical mission of check of powers while such department laws as the civil law and the criminal law derived from human's spontaneous habits, which was different.As far as the administrative trial structure is concerned, there exist three categories: the government and the people, the court and the government and the court and the people, which are the very main contents of modern political system. The inherent correlation between the administrative trial structure and the political structure provides a perspective for the article's research.The political reform in the late Qing dynasty constitutes a historical starting point of the political transformation as well as the one for the administrative trial in our country. The political transformation, i.e. the modernization of politics, is the transition from despotical politics to a democratic one. The modernization of politics is one aspect of modernization that is an unavoidable transformation in human society. It includes unification of the nation, change of political awareness, ramification of its structure and participation by the public. It is generally believed that the modernization in China commenced from the first opium war made in 1840, with the evolution from a traditional country to a modern one as its principal task. The necessity for this evolution is that there is no survival space for the traditional country in modern society, which was reinstated to the Chinese people by the national afterward humiliations. Modernization is all the time the subject matter in Chinese political and social life.When computed in terms of time, the administrative trial in China has its life for more than one hundred years, which is not so short, but why does it still encounter so many difficulties? Review of the history of the administrative trial in China, may not furnish a resolution but at least renders a help to our understanding.The objective of the article aims at depicting the theoretical map by Vonda MCINTYRE by pointing out several basic issues and then provoking further thoughts.The research on any theory shall not go without the guide of methods, the selection of which depends on the subject matter concerned. The propensity of the administrative law being public law entails that the research methods "should be of explanatory, empirical, critical and historical nature." In the direction of several approaches, we shall start our journey from three levels: the individual and the government, the court and the government, the individual and the court. Taking the political development as the entry point, the factual state of the administrative trial in China is endeavored to be expounded after examining the historical transition of the above three relations.Chapter One: the traditional political order: the native resources of the administrative trialThe ancient China was a bureaucratic country with high centralization of powers. The country was the private belonging of the emperor and the source of the emperor's power came from the idea emperor's power given by god. The people taking the country as the root and the solid root making the country at peace was used to condense the relations between the emperor and his subjects in ancient China, the nature of which served as the theoretical tool for the ruler who enjoyed the idea that those who win the hearts of the people win the country. The people were at all the times ruled and had no rights to participate in politics. The patriarchal clan system formed the main channel to mitigate the disputes between the official and the subject in ancient China. The ancient China was a highly unified country, which produced the entangling relations of country and family, the public and the private and a greatly unified country with unification of man and nature. There cannot prop up a modern administrative trial system in a country with high centralization of power and socially unified political civilization.Chapter Two: the new deal in the late Qing dynasty: from tradition to modernWith the introduction of western political civilization into China after the breakout of the opium war in 1840, the traditional Chinese politics and culture began to fission under the influence of the western ideas of sovereignty, democracy and republic and division of powers. Before the grave national crisis after further aggression by western powers, the Qing government initialized the political reform of saving the nation by making a constitution. The promulgation of the Constitutional Outline by Emperor's Order, the bureaucratic reform of division of judicature and administration and the establishment of responsible cabinet system, marked the beginning of the erosion of the traditional political order as well as the start of the political modernization in China. The new deal the in the late Qing dynasty therefore constitutes the watershed of the Chinese politics' transition from tradition one to modern one and with this reform the administrative trial system set on its journey in China.Chapter Three: division of three powers and the administrative trialThe founding of the Republic of China in 1912 announced the breakup of the traditional Chinese political society. The national power was basically structured on the model of the division of three powers in the early time of the Republic of China and the administrative trial was reserved as a political heritage with the establishment of the administrative appellate court subordinate to the president and the publication of such laws and regulations related to administrative trial as the Administrative Procedural Ordinance. However, with the military intervening in politics and political running at the time, the government had inadequate authority to rule the then society and thus the administrative trial system produced no achievements as a check of powers. Still, the specialized charge of administrative suits for fourteen years in a time with incomplete rule of law and legal systems, laid a foundation for the administrative trial system in the republic government period.Chapter Four: the division of five powers and the administrative trialThe democratic and republic system proved a failure by practice in promoting political modernization. The reunification of the Republic of China in the republic year 17 brought in with it the administrative trial that restarted its new journey. Guided by the constitution with five powers initialized by Sun Yasen, the Republic of China established the political mode of division of five powers and the administrative court subordinate to the judicature court in 1933 with the administrative procedural law passed. Relatively speaking, the administrative court was then the most complete administrative trial organ. But because of its subordination and the instability of the then politics, its role of checking powers had not exerted its full influence, which made the administrative court an ornament of the Republic of China,Chapter Five: the unification of court and administration and the administrative trialThe time after 1916 witnessed a China with a disunited politics till the year 1949, when the independence of sovereignty and unification of nation provided a new moment for Chinese political modernization. The newly structured political order, including the highly centralized power, a government with full intervention and the reliance on administration by judicature, did not advance the progress of political modernization as expected. The highly unified social structure turned obstacle again to political modernization and discontinued the administrative trial. The reform in 1987 put the Chinese political modernization into climax. With the political development and reestablishment of the administrative trial produced a good interaction between political development and administrative trial.Chapter Six ConclusionPractice proved that there is no direct transformational channel between the traditional Chinese bureaucratic and imperialistic system and the modern centralized bureaucracy system. The transformation shall undergo a process of centralization of powers (in traditional sense)-division of power-centralization of power (in modern sense) and the development of the administrative trial system in China also underwent a non-be-non-be circle. Therefore, the political transition from the traditional one to a modern one composes the condition of the emergence of the administrative trial while the full play of its function was dependent on the establishment of the government authority. Before 1949, there was no a powerful government with authority which produced an ornament-like administrative trial. The discontinuation of the administrative trial between 1949 and 1978 was attributed to the founding of a fully competent government. The experience again proved that the high centralization of power also conflicts with the administrative trial. In reverse, the administrative trial assists in promoting establishment of government authority and ramification of structure and further speeding up the pace of the political modernization.