Research On The Legalization Of Administrative Decision-Making

Since the beginning of the new century, the realization of rule of law in administrative decision-making in China has attracted much attention of the ruling party and the central government, the significance of the study is to foster the modern concept of "Rule of Law" in administrative decision-making, to build modern administrative decision-making system and mechanism, and to promote the political civilization construction of China; the academic significance is to further explore the administrative decision-making theories of legal mechanisms of participatory democracy based on early research, and to expand the administrative law perspective.The dissertation establishes the idea of rule of law in administrative decision-making. That is, to promote the rule of law in administrative decision-making through the democratization of administrative decision-making, this is different from the point of view that the rule of law drives democratization. The idea of democratization preferentially is based on two aspects, on the one hand, "the rights democracy" rises generally, and the expression of public participation in administrative decision-making to safeguard their own rights and interests has become much stronger, and the government also begins to establish the communication mechanisms; on the other hand, a number of local-level government began to attract public participation in decision-making initiatively, and to activate all possible democratic elements within the system. The solution may be offered that the right of participation resists the corruption and abuse of administrative decision-making power. Participatory democracy starts with the rule of law in administrative decision-making, and the conflicts between high participation and low institutionalization should be resolved at present; therefore the system construction should be followed. In the system construction, administrative decentralization (Vertically, the central government shares power with the local government; horizontally, the government shares power with society) and public participation as the main contents, the model of administrative decision-making subject of multi-level and multi-system should be built. The relationships between the Communist Party of China and the government, between the National People's Congress and the government exist in the administrative decision-making system. The reform should be promoted that the separation of the government and the Party functions and the administrative decisions-making is a core function of government that should be returned to the government; the authority of the NPC should be improved, and the power of NPC decisions on major issues should be fulfilled well. It is an important part of realization of rule of law in administrative decision-making regulating the relationship between the government decision-making and the NPC decisions on major issues, the relationship between the government decision-making and the CPC policy. And to form a coordinative, restraining, and positive interaction relationship, which is a challenging and long-term task. Therefore, this study argues that the realization of rule of law in administrative decision-making should take the road of gradualism.The study establishes the development goal of the realization of rule of law in administrative decision-making. That is the unity of the formal rule of law and the essential rule of law. "Integrated Rule of Law" advocates democracy as the decision-making process, and effective public participation in decision-making, directly safeguards their legitimate rights and interests, and the content of administrative decision-making shifts from the economic supremacy to equitable priority. This goal is not only for formal rationality, but also for value rationality, and furthermore, it takes into account the efficiency of executive decision-making. This issue has been discussed in the first time. In the system construction, the due process of administrative decision-making should be built, covering the proposal of decision-making, the openness of decision-making, decision-making hearings, the evaluation of decision-making, including the notification rules, the hearing rules, files reading rules and reason-giving rules, etc.This study establishes the dynamic mechanism of the realization of rule of law in administrative decision-making. The realization of rule of law in administrative decision relies on the combination of government and society. That is "interactive integration theory" which breakthroughs the limitations of a single thought of the authoritative political transition, and eases off the pressure of social disharmony. The structure of positive interaction between the government and society has been expected to be built. Civil society and government are cooperative rather than confrontational in China. Institutions supply is necessary for the development of social groups. The author advocates promoting state supervision through social supervision, creating condition for people's supervision, activating these factors of system within rule of law terms and realizing positive interaction between state supervision and social supervision. The NPC Ombudsman system should be built, and judicial review of major administrative decisions should be built up, too. In supervision system, this study advocates the establishment of presumption of fault-based system, and fair liability and no-fault liability for the complement system, the administrative decision-making subjects bear liability and inside the decision-makers themselves have the accountability for their decisions. Meanwhile we should recognize the limitation of civil society in promoting the rule of law in administrative decision-making, and the government should play a leading role in institution-building and administrative decision-making system reconstruction. Wenling "Democratic Deliberation" and the practice of Ninghai have been providing supports for the argument.