Legal Management And Review On Administrative Regulations

In the process of building a socialist country ruled by law with Chinesecharacteristics, administrative regulations play an irreplaceable role with other meansin aspects of the executive authorities to implement the laws, regulations and policiesto fulfill their social functions. However, the executive authorities have released alarge number of illegal or inappropriate administrative provisions so far, which notonly infringe upon the lawful rights and interests of the administrative counterpart,but also undermine the authority of the executive. Therefore，scientific and reasonablemanagement and review on administrative regulations have become an crucial issuein implement of administration based on law and have been widely focused andmulti-perspective study by numerous administrative law scholars.Observed From the development of the current administrative regulations oflegal management and review system，China has been constructing various systemsabout a permission to enact administrative regulations，local norm-setting proceduresof administrative regulations，filing and review of administrative regulations withinthe administrative system，administrative reconsideration collateral review，regular orirregular cleaning of administrative regulations，filing and review of administrativeregulations within the Congress Standing Committee system，the court sendingjudicial recommendations of correcting errors in administrative requirements to theexecutive after collateral review of administrative regulations for determiningreference etc. These various systems in the administrative system internal and externalcontrol and supervise the power of developing the administrative regulations together. The purpose of developing these various systems is both to ensure the authority of theadministrative regulations, to effectively realize the management functions ofadministrative regulations, and designed to correct the error of the illegal orinappropriate administrative regulations in order to protect the legitimate rights andinterests of the administrative counterpart. After years of institutional innovation,improvement and practical operation, it has been necessary to objectively analyze andreflectively summarize the situation of achieving the purpose and regulatory effects ofthese systems of legal management and review on administrative regulations.From the view of the achievements of China’s administrative law scholars in theregulation theory of administrative regulations, most researchers theoretically discussfrom review of administrative regulations, and in recent years more and moreadministrative Law experts focus on and research these problems such as filing andreview of administrative regulations within the People’s Congress StandingCommittee system Specified in the law on supervision, collateral review on thereconsideration of the administrative regulations Specified in the People’s Republic ofChina on Administrative Reconsideration Law amendment, Judicial Review Specifiedin the People’s Republic of China on Administrative Procedure Law amendment andso on. Therefore, the researchers relatively neglect objective analysis and details ofthe thinking of the problems about the science and feasibility of the regulatory systemitself, coordination and convergence between the different systems, whether all thecontrol and supervision systems of the administrative regulations playing acomprehensive regulatory function which should be or not, etc.To make the empiricalinvestigation of various regulatory systems of administrative regulations and therelationship between the different systems as a research starting point, the focus ofthis dissertation is efforts to respond to these problems on science and coordination ofthe different regulation systems of administrative regulations.This dissertation consists of five parts, specifically including the introduction, anoverview of some definitions of core law jargon and the research methods, the legalmanagement and review of foreign administrative regulations and its implications forChina, the administrative self-regulation within the administrative system, thesupervisory regulation within the Congress Standing Committee system,reconstruction and improve the regulatory mechanisms of administrative systeminside and outside.The first part explains the causes of the dissertation research, analyzes research value of this dissertation in theoretical and practical way, and illustrates the mainresearch method such as comparative analysis and empirical statistical analysis usedby the paper.The second part defines the administrative regulations of the core concepts ofthis dissertation, describes on the research Status of administrative regulations, andcombs and assesses the main achievements of theoretical studies, which has laid thefoundation for further expounding research content around the core arguments of thisdissertation.The third part of the study includes two aspects: whether the Unique regulatorysystem itself in various regulatory systems within the administrative system isscientific or not; and how to reasonably deal with interface issues between differentregulatory systems within the administrative system. Among them: First, the paperelaborates the status quo of the administrative regulatory systems within theadministrative system on norm-setting powers and norm-setting procedures of theadministrative regulations, filing and review of administrative regulations，administrative reconsideration collateral review, and cleaning up illegal or outdatedadministrative regulations, etc.; Secondly, the paper analyzes the problems in theevery regulatory system itself, and proposes to solve the problem of countermeasures;Last, the paper analyzes the issue of interface between the various regulatory systems(in particular, the norm-setting procedures, the procedures of filing and review, andclean-up procedures) and proposes countermeasures to solve the problem ofregulatory mechanisms.Part IV expounds the necessity for controlling and supervising administrativeregulations outside the administrative system at first; Then studies and analyzesproblems and problem-solving measures of the regulative systems such as the systemof standardizing the norm-setting power, the system of standardizing the norm-settingprocedures, and the system of standardizing the People’s Congress StandingCommittees’ filing and review of administrative regulations having been establishedby legislature; Third, Expounds administrative law scholars’ dispute in China aboutwhether it should be administrative regulations into the scope of judicial reviewdirectly, describes the actual operating conditions of the current judicial reviewsystem in China in order to decide whether to apply and Judicial recommendationssystem, and analyzes the problem in the systems. On this basis, the author proposes: to improve our supervision system of judicial review, the way of China’s judicialreview in order to decide whether to apply and the system of judicialrecommendations submitted by court to the executive should clearly be confirmed inAdministrative Litigation Law amendment; the collateral judicial review systemwhich the specific level of court can declare to confirm or reject the effectiveness ofthe administrative regulations should also be confirmed in Administrative LitigationLaw amendment.Part V, including two respects which is the regulative mechanisms of the filingand review of the administrative regulations and the regulative mechanisms of casereview of the administrative regulations, the paper analyzes of the main problems inthe regulatory mechanisms of the every level, and proposes countermeasures. That is,on the one hand, author analyzes the problems among the main elements of thenormative content, practice effect, and interface of systems by comparing filing andreview of administrative regulations within the People’s Congress StandingCommittee system and filing and review of administrative regulations within theadministrative system and puts forward to reconstruct the regulatory mechanisms offiling and review of administrative regulations between the two systems according toshould-be function in the administrative provisions of the regulation played byadministrative system and the People’s Standing Committee system, which is ascientific regulatory mechanisms that is filing and review of administrativeregulations within the administrative system to be played in positive way but filingand review of administrative regulations within the People’s Congress StandingCommittee system to be played in negative way to save the resource for casereviewing owned by different regulative systems and to avoid the collision of theconclusions of the review done by different regulative systems.On the other hand, theauthor gives a comprehensive description on the case review mechanism and practiceconsisted of the case review system in which Executive authorities is responsible forfiling and review of administrative regulations, the case review system in which thePeople’s Congress Standing Committee is responsible for filing and review ofadministrative regulations, the case collateral review system in which administrativereconsideration collateral review authority is responsible for collateral review ofadministrative regulations, the case collateral review system in which court need toconfirm the legality of administrative regulations as the basis of the specificadministrative act, analyzes the potential conflicts between the case review systems, and proposes to deal with conflict mechanism in the way of classification between theregulation systems by whether specific administrative regulation has resulted in actualinvasion for the administrative counterpart.In short, the paper’s main idea is that, in order to give full play to the positivefunction of the administrative regulations, and to overcome and avoid its negativeeffects, we ought not only to build every unique regulatory system with scientificthinking, with particular attention to the procedural details of the regulatory system,but also to properly handle the coordination problems between the various regulatorysystems and to set up the conflict resolution mechanism in scientific way.