On Legalization Of Incentive Regulation In Service Administration

In the context of administrative law, incentive regulation is one of the non-compulsory administrative approaches to achieve its stated policy objectives which subject of administration promotes and leads the market actors to make or not to make a certain behavior in accordance with the Government's intention voluntarily through the use of economic incentives. It can address market failures and make up the deficiency of the traditional command-control regulation. Incentive regulation belongs to the domain of service administrative and it is the same as service administration in administration democracy, administrative efficiency, administrative people-ideas or ideals of humanistic care and values. Both of constraints and incentives are the proper meanings of modern administrative law, it is also a major trend of administrative law that incentives continue to strengthen. As the incentive regulation has many advantages that the traditional command-control regulations haven't, With the development of democracy and market economy, as well as the rise of service administration, it is a rational choice that incentive regulation is generally established and implemented in our country. However, incentive regulation also has its own limitations, and to overcome the limitations requires legalization of incentive regulation. Simultaneously, it requires legalization of incentive regulation for service administration and to promote incentive regulation to be widely established as soon as possible in our country.Legalization of incentive regulation should follow and implement the basic principles of administrative law, especially including principles of rule of administrative law, trust protection principles, the principle of proportionality and due process principles. For principles of rule of administrative law, incentive regulation doesn't apply to legal reservations except special events. As the incentive can be seen essentially as an administrative commitment of subject of administration to administrative counterpart, it is very important to protect interests of trust of the counterpart. The significance of the principle of proportionality to legalization of incentive regulation is mainly reflected in that it can guarantee appropriate regulatory of incentive regulation. Due process can safeguard the interests of administrative counterpart and related parties and control over abuse of discretion. It can also stimulate the smooth realization of aim of incentive regulation. These four basic principles should be carried out in the legalization of incentive regulation.Some worthy experience can be summarized from reviewing the substantive legislations of other countries and regions. Thinking of these experiences, as well as the basic legalization principles of the incentive regulation, the substantive legislations and its perfecting of our country should firstly continue to relax the existing regulation and reform institutional system. At the same time, the applying scope and legislation level of incentive regulation should be developed and advanced, and the basic legalization principles of the rule of incentive regulation, especially the principle of proportionality should be carried out in legislation. It should be mentioned that the legislation level can be multiplied because of the limited application of the principle of legal reservation, but the legislation can only adopt decentralized model for legislation.Incentive regulatory actions are applicable to the administrative procedures. In service administration, subjects of administration of our country should also take on an active duty for the incentive regulation of proceedings.The legislation of procedure of incentive regulation and its perfecting should also pay attention to implementation of the basic principles of the legalization of incentive regulation. It should be noticed particularly establishing and perfecting the appropriately ensuring procedure to carry out the principle of proportionality and due process principles and the revocation and change management procedure of incentive regulation to carry out the principles of trust.In addition to developing and improving the relevant substantive legislation and procedure legislation, it is necessary to define the rights of relief and legal responsibilities of the relevant, in particular, the rights of relief of the counterpart and the third party, and the legal responsibilities of the subject of administration and the counterpart in unilateral incentive regulation, the legal liabilities of the subject of administration in administrative contract of incentive regulation.