Study On The Legitimacy Of Administrative Provisions

As an important form of Administration behavior, Administrative provisions show comparatively weak in the existing legal system and theoretical research. But the degree of the rule of law directly affect the level of performing official duties according to law and the government construction course by law. In this paper, the writer makes thorough systematic in-depth study on the legitimacy of administrative provisions. The main purpose of the study is to correctly understand and evaluate the nature, status and role of administrative provisions with the actual condition of China's rule of law, and then make it clear to ensure the legitimacy of administrative provisions. That is , what are standard and mechanism of judging and ensuring the legitimacy of administrative provisions and how to judicial review administrative provisions, to unite exercise of power and protecting the rights of organic unity to the full and effective. The writer combines the empirical analysis with the value analysis, in addition, there are methods such as contrast analysis,discriminate analysis,history analysis, semantic analysis, case analysis and so on .Chapter one summary about administration provisions. The writer mainly discusses the concept of administration provisions and expoundes the significance of establishing the concept Administration provisions have the multiple attribute about the law used and formulated, which have unable replaced value and significance in modern society. On the basis of understanding the law concept , administration provisions ought to be looked upon as the origin of administrative law, but there is much malpractice which requires to be normed, controled and supervised. The legitimacy of administration provisions is the unite of form legitimacy, procedure legitimacy and essence legitimacy.Chapter two investigation and discussion about form legitimacy of administrative provisions. The legal source of stipulating administrative provisions belongs to super ordination law warrant or inherence. In working out extent of authority, The principle of law superiority and reservation of law should be followed . we should lead into"significance theory", take citizen fundamental right significance as foundation, judge a standard combining with public affairs significance relevance and delimit the range that the law reserves, to fix the range of legislative power and the administrative power.Chapter three investigation and discussion about procedure legitimacy of administrative provisions. democratic principle, impartial principle and efficiency principle ought to become fundamental guiding regulation. We should refer and draw rule idea by law commonly used in procedure system, and design a series of the clear and operative procedure regulation, to bring it into play that the function in modern legal procedure such as participation, conversation, expounding, proving and moving mutually and so on, thereby lift legitimacy of administrative provisions.Chapter four investigation and discussion about essence legitimacy of administrative provisions. Respect and ensure free are the core demands of essence legitimacy of administrative provisions, and should be included in performing official duties according to law, constructing the government by law and building constitutional government. At the same time, scientific developmental concept agreed with people-oriented science is the important auxiliary booster in economic growth and political civilization building. In state of emergency, emergent authority in administrative provisions ought to kept in demand in preserving society and developing freely, to unite the authority autonomy high-effect exercised with free rights guaranteed appropriately.Chapter five judicial review about administration provisions. We should handle properly the relation between judicial powers and the administrative power, fix the extent of competence in administration provisions and corresponding judicial review range , To embody the demand rule by law in authority division and equilibrium. Drawing USA pattern sticking to in judicial review along with active judiciary idea, and combining our country political system and the actual judiciary, we should constitute a set of practical feasible judicial review mechanism in administration provisions.In this paper, the writer strives to make " Administrative provisions " clear in theory and practice by demonstration , form the correct objective cognition about it's concept , character , value and legal status, shape the value judging standard and operative guarantee mechanism about the legitimacy of administrative provisions, rich and perfect theory and practice in performing official duties according to law ,and structure concrete judicial review system about administrative provisions.