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Due Process In Welfare Administration

Posted on:2013-07-08Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y LuoFull Text:PDF
GTID:1226330374488143Subject:Constitution and Administrative Law
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Both of the construction of service-oriented government and social construction focusing on improving people’s livelihood mean that the welfare administration in China faces unprecedented opportunities of development. Meanwhile, the construction of government based ruled by law grows vigorously, especially the construction of administrative procedure. There is a tension between welfare administration and administrative procedure. While administrative procedure can reduce the efficiency of welfare administration, the welfare administration could dissimilate without the regulation of administrative procedure. The due process in welfare administration can help to resolve the tension between welfare administration and administrative procedure.In American law, there is a distinction of substantive due process and procedural due process. The prior one mainly aims at the congressional legislation, which is a constitutional topic. The due process discussed in Administrative law is the procedural due process. This article tries to find the answers of the problems about American procedural due process in welfare administration, which contains the meaning, status, history of development, application areas and conditions, the method and standard of judgment. United States has made an outstanding achievement in both fields of administrative procedure and due process, whose due process in welfare administration open the prologue of the American revolution of due process, and also is the main force of the revolution. Therefore, there are double significance in theory and practice to make research on due process in welfare administration of American.American welfare administration is mainly constructed by two parts, public assistance and social insurance. American due process of law origins from England, but surpasses England in many aspects. The due process of law in America, was restricted in criminal judicature primarily, and then extended to administrative area, but firstly to the order administration. Due process clause began to be applied in American welfare administration in1970, and the symbol is the Supreme Court’s case of Goldberg v. Kelly, which started the due process revolution in America. However, due process counterrevolution was emerging quickly. Due process revolution and counterrevolution formed the special background of the change of due process in welfare administration of America. The theory of "The bitter with the sweet" in1974made rather pressure on due process revolution, for the limited pressure, the one who ended the due process revolution is the Welfare Reform Act in1996. The enforcement of Welfare Reform Act has made great attack to due process in welfare administration. However, the due process in welfare administration still exists.There are certain applicable conditions of due process in welfare administration of America, mainly of which are adverse welfare administrative decision, including welfare termination, welfare suspension, welfare reduction, withdrawing the excesses welfare and refusing of welfare application; the property interest in welfare; the omission or flaws of the legal procedure, or there is no flaw in the legal procedure, but if the legal procedure is applied, it will make irreversibility and irremediable loss to administrative counterpart.The due process in American law is usually minimal, especially in welfare administration. This kind of minimal due process in welfare administration contains hearing, notice and an unbiased tribunal. The element of hearing is the core, including plentiful content and various forms; the element of notice is extremely crucial to improve the efficiency of hearing and reduce the cost of hearing, so it can’t be taken rank with element of hearing, and has formed very strict requirement, which mainly are timely, sufficient and correct; the element of the unbiased tribunal is temper justice with mercy. The administrative judges are centralizing in welfare administrative department, which explains that welfare administration attaches importance to this element. The diversification of Administrative judges’standpoints and roles reflect the loose aspect of the element of the unbiased tribunal. It is also indicated in due process in welfare administration of America that presenting reason is contained in the element of notice. Besides presenting reason, the element of notice includes presenting remedy methods and many other contents.The methods to judge the American due process are historical method, intuitive-justice method and interest-balanced method. The dignitary method is mainly the scholar’s opinion, which is acquaintant inner our country. The historical method and intuitive-justice method came out before the rise of welfare administration, which didn’t lead the methods to judge the American due process in welfare administration. However, intuitive-justice method has made indelible contributions in the creation of American due process in welfare administration. Interest-balanced method came out in the background of welfare administration, and established its integrated paradigm in the due process cases of welfare administration. Interest-balanced leads the method to judge the American due process, and is excellent in objectivity, but often criticized for the ignorance of the value of the procedure itself.The due process in welfare administration in China has a lot of aspects to be improved, and we can learn the experience from America. During the process of improving the due process in welfare administration in China, we must make it clear that the due process can’t only be procedure, which means it can’t be separated from substance; it can’t be generalized, which means it should establish the minimal paradigm; it can’t allow no flexibility, but should consider the type of welfare administration, the diverse welfare decision which burden the administrative counterpart, and the detrimental influence to the administrative counterpart; it can’t be judicialzed, in order not to increase the unnecessary cost. From the level of institution, the due process in welfare administration in China should expand the application range, but should stick to the supplementary role with caution; it should reinforce the special legislation in welfare administrative procedure, and enact the specific norm of administrative procedure of welfare; it should use the non-confrontation hearing; the informing procedure should be strict, including presenting reason; the challenge procedure should be acted as tempering justice with mercy; litigation is guarantee, but the summary procedure is preferable.
Keywords/Search Tags:welfare administration, due process, administrative procedure, government benefit, service administration
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