A Study Of Allocation Of The Power From Chinese Administrative Examination And Approval

Maitland regarded the crown in British constitutional discourse as a fig leaf which can be readily used to cover the ignorance and let us be free of exploring those difficult questions. When faced with some social and economic problems, the government always wants to adopt the most simple and effective measure. As the administrative approval exactly meets this demand, the power of administrative examination and approval has become a fig leaf for the government. Although in different contexts it has different names, the administrative examination and approval system has been widely accepted around the world. As one of the most direct forms in the government regulation of economic, it shoulders a heavy task, which government carries out proper interventions in economy in order to guarantee public interest. However, on the other hand, the administrative examination and approval makes government public power infringes private rights possible. When the government was unable to curb their impulses of power, this power can be easily abused and hurt private rights. Thus, countries around the world generally have strict limits on this power and regard it as the beast placed in a cage. Involving the boundaries of government and the market, the conflicts between rights and powers, administrative examination and approval system is an indispensible but intractable institution in socio-economic development.Chinese administrative examination and approval system comes late, and the way to form is different from the Western world. China started from a planned economy and developed into a more liberal and comfortable state. At the same time, the administrative examination and approval system gradually shifts from undertaking the whole project into interfering with market failure. Today, China has entered a new normal in economic development, the reform of the administrative examination and approval system has become a top priority. It is noted in the Third Plenary Session of the Party’s eighteenth report that we will make the market played a decisive role in the allocation of resources, which indicates that in the new normal, this system will face vital reforms and market will play an increasingly important role in economic development. Decentralization started in 2012 across the China also achieved good results, marking this system gets into the stage of comprehensive reform. However, the decentralization which cancels and decentralizes the power of administrative examination and approval is only a measure, the core issue is how to configure it.During the new government, which takes Li keqiang as prime minister, it regards the Chinese administrative examination and approval system reform as an important policy goals. Among all the 40 times state council executive meetings in 2014, there were 21 meetings discussed delegating or canceling the items of administrative examination and approval. There were has been 300 items of administrative examination and approval which were canceled. Including the 416 items which were canceled, the government has already achieved the goal which the new government cuts one third of more than 1700 items. Traditional studies regard the allocation of approval power as the the power of allocation among the governments. However, the author considered that under market decides rule, when analyze the problems of allocation of approval power, it is important to consider the boundary between the power from government and the right from market. It is a question that who should deploy the power and the power should be configured by whom? How to test the effect of the configuration of the power? Meanwhile, of which should be cancelled, decentralized or retained and what is the basic principal of it? Around these problems, this paper mainly studies the following parts:In the first chapter, we mainly focus on administrative approval and related concepts. This chapter analyses and compares three concepts in-depth: the administrative approval, the power of administrative examination and approval and the system of administrative examination and approval. In this paper, we consider that administrative approval is a vague concept which seems clear. Its meaning vary among different situations, especially there exists debates on the administrative approval and the administrative licensing, but after all the former eventually needs to be included in the scope of administrative licensing. Simultaneously, the administrative approval is the basic means of managing the economy for the government since ancient times. In addition, the administrative examination and approval system is the result of the development of administrative approval and its core content involves the configuration of the power of administrative examination and approval.In the second chapter, we mainly focus on the evolution of the configuration of Chinese administrative examination and approval and its motivation. This chapter analyses the evolution, divides the history into five stages and explain the features of the configuration of the power in each stage in detail. Meanwhile, as the changes in the configuration of the power in Chinese are closely related to the development of economies, so we analyze the changes from external and internal reasons.In the third chapter, we mainly focus on problems in configuration of the power of Chinese administrative approval. This chapter analyzes the existing problems nowadays in detail, mainly including the uneven allocation structure, the unequal distribution in the power of administrative examination and approval between central and local government, not having formed the service-oriented government and our country is still in a difficult transition period, lack of effective legal limit and proper configuration, lack of effective oversight, especially in judicial oversight and other issues.In the fourth chapter, we mainly focus on the configuration in developed countries and the enlightenment to China. Firstly, this chapter analyzes the reform of deregulation in developed countries since 1970 s and the reshape of this power after the financial crisis. Simultaneously, this chapter also uses the comparative study among the United States, Britain, Japan and other developed capitalism countries in the mode of power of administrative examination and approval configuration. It is found that there stays certain pattern. Therefore, the reform of allocation of this power in China should learn from their advanced modes and cater for this pattern.In the fifth chapter, we mainly focus on mechanism of inspecting the effect of the reforms. This chapter puts the problem of reshaping of mechanism by combining currently configuration problems. In particular, it is noted that the key is to change the traditional idea of evaluation, the evaluation criteria, reduce the set of the power of administrative examination and approval and return more economic rights to the market. "Negative list" mode in Shanghai FTA will be the direction of the futures and the main way of the power of administrative examination and approval settings. In addition, when this power infringes the counterpart’s legitimate rights and interests, we need to strengthen the judicial guarantees provided by what required in the "Administrative Procedure Law". The author believes that the traditional mechanism to inspect this power is tested mainly by configured internal government evaluation and criteria and such test will be ineffective due to the internal superior-subordinate relationship. Thus, we should establish the laws testing the configuration of this power rule and evaluating the mechanism, which uses the "Administrative Licensing Law" and "administrative Litigation " as the center, market evaluation as the main criterion for testing and judicial protection as the final barrier. Also, we should grasp the decisive role of the market in resources allocating and adopt freedom and efficiency standards mainly based on market evaluation to test the effect of reform.In the sixth chapter, we mainly focus on the test of efficiency criteria of configuration, which is to some extent similar with what mentioned in the sixth chapter. In this chapter, we test the effect by the efficiency criteria. To start with, we analyze the different efficiency criteria between China and foreign countries, including Pareto efficiency, Kaldor ? Hicks efficiency and Chinese thoughts of productivity. Then point out the shortcomings of various efficiency criteria and put that empirical test based on efficiency criteria is scientific. Next, based on the approach of cost- benefit analyzing, we adopt certain tools in economics research to analyze of the costs and benefits of various levels of Chinese administrative examination and approval configuration in detail and point out that the primary consideration in configuration is efficiency and what we need is the efficient allocation. From this, another criterion to judge the effect is the efficiency criteria based on cost- benefit analyzing.In the seventh chapter, we mainly focus on the test of freedom criteria in China. In this chapter, we do the empirical study on the effect of decentralization, with the configuration of this power’s influence on entrepreneurship as an example, which as it is, involves the changes of mechanism that pointed in the fifth chapter. After confirming the decisive role of market in resources allocating, the test should follow the criteria of the market as the market should first be a free market. Therefore, in this chapter we regard this power’s impact on the freedom of the market as the criteria to test the effect of configuration.In the eighth chapter, we mainly focus on the reshape in the configuration of the power of Chinese administrative examination and approval. This chapter is a summary of the whole text and reshapes the configuration in China. First, in this chapter, we analyze two important controversial propositions in the reforms and point out the need for administrative approval in the market economy. Meanwhile, it is pointed out that the decentralization is not the whole part of the reforms but proper configuration is the core of the reform. Second, from reasonable configuration, we believe the following part is important: Firstly, change the traditional Keynesian thinking and guide by new supply theory, to take make full use of the role of the market according to stimulate supply and reduce the quality and quantity of the power of administrative examination and approval in the transition period. Also change recognition of market failure under Keynesian thinking and guide by the new supply theory, in which the market failure is no longer a norm in the market but a special circumstance. Secondly, build a multi-level structure of configuration, lead a reasonable distribution between allocation powers and rights among government, social middle layer and the market, which eventually results in tripartite mutual supervision and promotion and change the dominant role of the government in economic development. Also, pay particular attention to the limitation of government power which nowadays are too broad and return the right of self-regulation to the market. Third, a good deal with the decentralization of administrative examination and approval authority, the requirements of the Central moderate decentralization to local; fourth, the administrative examination and approval authority for the configuration of the test author also gives suggestions, one right configuration requires administrative approval to market guide to the market on the basis of self-configuring. The second is to establish a "cost- benefit" rule of law based evaluation mechanisms; fifth, from a centralized approval and reduction procedures to solve problems both approval and approval of long duration is too long; the sixth, improve citizen participation in the administrative approval the system, increase public information efforts.To sum up, the configuration of administrative examination and approval authority is the difficulty of the core of Chinese administrative examination and approval system, but also the administrative examination and approval system. Decentralization of administrative examination and approval authority, reservations and cancellations need to efficiency and the free market as the evaluation criteria, and thus test the effect of the reform of the administrative examination and approval power configuration, the precise scope of administrative examination and approval authority. Meanwhile, the configuration process of administrative examination and approval authority shall comply with the requirements of the rule of law process, built up legal mechanisms to "Administrative Licensing Law" and "Administrative Procedure Law" as the center. Only this can really make full use of the power of administrative examination and approval, to accelerate economic development.