On Spirit And Perfection Of The Rule Of Administrative Law In China

The rule of administrative law is an important part and the difficult point of the rule of law in our country. Adhering to administration according to law is one of basic requirements of the socialist concept of the rule of law. In order to protect legal rights of citizens, artificial persons and other organizations, the administrative power shall be wholly brought into the legal track through regulating its source and excise, investigating responsibility for illegal administrative activities and the system of rights relief. The rule of law provides legal securities for promoting social development and administration reformation. Now the construction of the rule of administrative law has made some achievements, but it is different from targets and requirements of the rule of administrative law. The rule of administrative law has many shortages in systems of administrative law, the enforcement of administrative law and the supervision of administrative power. In order to push forward the construction of the rule of administrative law, we should discuss countermeasures to perfect the rule of administrative law. It is significant to study spirit and perfection countermeasures of the rule of administrative law.This thesis analyzes relations between the administration and laws and the concept of the rule of law. Based on those analyses, the author thinks the rule of law means subjects who exercise administrative power and the motion of administrative power should be under the control of good administrative laws. The author describes the concept of the rule of administrative law from several aspects:the subordinate position of administrative power, subjects and objects of the rule of administrative law, the rule of good laws and its purpose to protect citizens’rights. The author points out regulating forms of the rule of administrative law:regulating administrative relations, relations of supervision on administration and relations of administrative relief by administrative laws. The author divides the process of the concept system of the rule of administrative law into three stages:the administrative legal system, administration according to laws and the rule of administrative law.The author points out notions of the rule of administrative law:upholding leadership by the Communist Party, the people-oriented philosophy and the administration according to morals as a supplement. Then the author analyzes its basic principles:the principle of legal administration, the principle of honesty, the principle of rational administration, the principle of unity of authority-responsibility, the principle of due administrative procedures, the principle of efficience and convenience. Because systems of administrative procedures is significant to the rule of administrative law, the author summarizes its systems of administrative procedures: the system of notification, the system of hearings, the system of openness of government information, the system of withdrawal, the system of stating reasons and the system of time limit.Our country has great achievements of the rule of administrative law under the leadership by the Communist Party and the promotion of our government. On the basis of overall consideration of the setup of exerising administrative power, the course of formulating administrative laws and the notion of the rule of administrative law, the author divides the rule of administrative law into four stages:the initial stage, the stagnation stage, the recovery stage and the development stage. Those achievements are embodied as follows:the formation of concept system of the rule of administrative law, the systematic state of administrative laws, the normalization of the enforcement of administrative law and initial formation of administrative relief systems.Although our country has great achievements of the rule of administrative law, it has some unavoidable problems. Firstly, the spirit of the rule of administrative law has a tendency towards fragmentation. Secondly, there are several retardation factors in our administrative legislation that important codes are vacant; that contents of administrative laws have defects; that the divide of administrative legislation competence is not clear; that administrative legislation techniques fall behind; and that administrative legislation patterns have a feature of relative closure. Thirdly, there are several retardation factors of traditional notion, interest pursuit, restriction of legal knowledge, enforcement systems, inadequate supervision and accountability in the enforcement of administrative law. Fourthly, there are several retardation factors in our administrative relief that impartiality of administrative review is an outstanding problem; that paradoxes exit in the review of administrative normative document; that abstract administrative acts and interior administrative acts are excluded from judicial review; that the public-interest litigation of administration is absent; that the scope of compensation for spiritual damage caused by administrative tort is too narrow and its regulations is obscure and lack of manipulation. Fifthly, there are several retardation factors in administrative accountability that its legislation exhibits hysteresis; that the responsibility is investigated at random; that allogeneic accountability is comparatively weak; and that the comeback system of officials who have been called to account is not perfect.The author analyzes macroscopically and proposes countermeasures. The author makes deeper analysis of the rule of administrative law from the perspective of jurisprudence and constitution. Then the author points out notions of the rule of administrative law should be reshaped, especially notions of social self-governance and contract should be established. Lastly the author analyzes several ways of realizing the rule of administrative law:strengthening legislative power, strengthening judicial power and strengthening public participation. The author thinks that the education of the rule of administrative law should be strengthened. We should give correct guidance to administrative subjects and administrative counterparts as to legal perception, legal motion, legal notion and legal action through all kinds of measures.The author analyzes microscopically and proposes countermeasures. In the matter of administrative legislation, the author puts forward that systems of administrative regulations should be constructed reasonably, which meas rational divide of administrative legislation competence, normative techniques of administrative legislation tand open patterns of administrative legislation. In the matter of the enforcement of administrative law, the author suggests that we should improve the qualification system of the enforcement subject of administrative law, the regulatory system of enforcement officials of administrative law, the form-reshaping system of administrative subjects, the benchmark system of administrative discretional power, the responsibility system of the enforcement of administrative law, its procedural rules and enforcement officials’consciousness of complying with procedures. In the matter of administrative relief, the author proposes that the administrative review power should be relatively concentrated; that procedures of administrative relief should be perfected; that decisions of administrative review should be non-final; that conditions setted by Article7of the Administrative Review Law should be canceled; that complete review power of administrative review agencies should be respected; that abstract administrative acts and interior administrative acts are brought into judicial review; that the public-interest litigation of administration should be constructed; that the scope of compensation for spiritual damage caused by administrative tort should be extended; and that specific speculations and calculation methods of spiritual damage solatium should be determined. In the matter of administrative accountability, the author advances that the administrative accountability law and the legal comeback system of officials should be constructed and the system of allogeneic accountability should be strengthened in order to boost strictness of administrative accountability.The author concludes that our construction of the rule of administrative law should be a course of openness and extensive participation.If top-down promotion by the government can complement down-top promotion by people and two forces can come into being resultant force acting on our construction of the rule of administrative law, common views will be reached and our construction of the rule of administrative law will be accelerated with extensive support.