On Administrative Entrustment

With the deepening of the public administration reform with privatization as the center in the world, the administrative entrustment has been the most widely used mode of public private practice in the current administrative practice, also been found in many administrative fields in our country. The legal effect which administrative entrustment creates is really worth paying attention to. This article attempts to reconsider the administrative entrustment theory and review the current legislation about it, and want to provide guidelines and norms for the well running of administrative entrustment through evolving the theory and promoting active construction of administrative entrustment legislation. To fulfill the task, the article does the following main exploration from two sides of theory and system, which contacts with each other.First, redefine the concept of the administrative entrustment. By teasing and analyzing our current concept of administrative entrustment, the paper will define the concept of administrative entrustment for an administrative action that the administrative subject confers a portion of its own power on an organization which does not belongs to the administrative organ system or an individuals to exercise.Second, draw the line of administrative entrustment. Borrowing French constitutional public service standards and American theory of the essential governmental functions, using the hierarch theory of importance as a tool, the research divides the executive functions into core and non core functions in accordance with the degree of importance, presents a standard of core functions no entrusting and banning entrust completely, frames the administrative entrust range in the respects of affairs and extents.Third, reposition the trustee’s legal status. The paper compares the advantages and disadvantages of the regulations about the trustee’s legal status between Germany, China Taiwan region and China, directing at a hybrid phenomenon in organization and behavior of both public law and private law, which the trustee shows when it executes public powers. Then it proposes that we should position the trustee’s legal status according to whether the trustee can independently execute the entrusted public power. That is the trustee in independent entrustment should be an administrative subject, and be similar to the administrative organs, conversely, that in assistant entrustment should not be an administrative subject.Fourth, design the procedures of administrative entrustment. On introducing the methods of administrative entrustment in Germany and in the region of Taiwan,China. The paper proposes that the administrative entrustment should be operated by signing a written trust agreement, only in an emergency can the entrustment be operated by an administrative decision with the trustee’s agreement as conditions attached. And through drawing lessons from the process of French official entrustment, it designs the steps and order of the administrative entrustment and discusses the contents of the simple procedure in emergency.Fifth, improve the supervision mechanism of administrative entrustment. Based on the requires that the exercise of all power should be supervised in the society with democracy and the rule of law, the paper constructs the supervision mechanism in two ways: first, to supervise a trustor, it should be noted to perfect the entrust open system, filing system and censorship.second, to supervise a trustee, some main matters and means should be noted.