A Research On Administrative Rules

In theoretical and practical scope of Administrative Law in China, administrativerules, compared with administrative laws and regulations, are a kind ofnon-administrative legislation with informal legal source. However, due to the inflationof administrative affairs and the deficiency of statute law, expanding development canalso be seen in the quantity, the scale and the scope of administrative rules. Therefore,it has attracted the attention of scholars of administrative law that the actual bindingforce of administrative rules has profound effect on the rights and obligations of theadministrative counterpart. There is no conclusive verdict about how to name generalrules outside of administrative legislation, which results in the chaotic situation ofpresent researches on administrative rules due to the non-equivalence between theconnotation and denotation of its idea. So, taking the establishment of the idea of“administrative rules” as the base, this thesis aims to discuss the nature ofadministrative rules, focusing on the research of the formation and regulation ofexternal-effect rules on the basis of categorization, and trying to make a ruledescription of the development tendency of administrative rules.Chapter One Fundamentals of Administrative Rules. This chapter firstly definesthe denotation and connotation of administrative rules. Compared with similar ideas,taking into account the results of foreign studies, it is finally confirmed that“Administrative Rules” is the best academic idea for describing the rules outside ofadministrative legislation. Thence, the chapter introduces the historical development ofadministrative rules, looking for the social and legal background of its occurrence.Lastly, this chapter argues the nature of administrative rules, i.e. a type of rulesbetween laws and policies.Chapter Two Typification of Administrative Rules. As a type of regulation system,administrative rules is actually a combination of several kinds of administrative rules,which are different in nature and type. This chapter firstly conducts standardizedanalyses of various administrative rules in existence, and then gives generalintroduction to and makes classification of them according to different criteria. Basedon this, the chapter puts forward the classification pattern adopted in this thesis–according to the criteria of direct regulated objects and actual effectiveness, administrative rules can be divided into extraverted external-effect rules, introvertedexternal-effect rules and introverted internal-effect rules. Further on, the chapter alsoelaborates on the scope, type and effectiveness of each rule.Chapter Three Formation of Administrative Rules. The process of the formationof administrative rules is directly related to the operating effect of the rules later on.Therefore, this chapter focuses on the analysis of the legalization of the formulatingprocedures of extraverted external-effect rules, as well as the legitimation of theformulating procedures of introverted external-effect rules. Moreover, good proceduresabiding to norms contributes to the enhancement of the democratic and scientificnature of rule-making. Different types of rules need different procedures during theprocess of formation.Chapter Four Regulations of Administrative Rules. Because of the diversity of thesubjects of administrative rules establishment and the relative simplification of itsrulemaking procedure, in administration practice, phenomena take place from time totime that administrative rules infringe the counterparty’s rights and interests. In orderto reduce and avoid the occurrence of illegal or undue administrative rules and protectthe counterparty’s rights and interests, administrative rules must be effectuallyregulated through various ways. Different types of administrative rules need to beregulated with different means and strength. Extraverted external-effect rules need tobe regulated comprehensively, because they are quasi-legislative rules which havedirect external effect. For that, perfect systems of administrative self-restraintregulation, legislative record review and effective judicial review need to beconstructed. For the part of introverted external-effect rules, based on the calculationof cost and efficiency, regulation by judicial review is the best way.Chapter Five Prospect of Administrative Rules. This chapter examines thedevelopment of administrative rules on the micro level from the perspective ofadministrative law science and on the macro level from the perspective of law society,and analyzes the factors that influence the quantity of and regulation scale ofadministrative rules. On the micro level, revision of the legislation law will have directimpact on the nature administrative rules, and the increase of judicial review strengthand the intensification of legislature’s dominant function will have negative impact onthe initiative of formulating administrative rules. On the macro level, development ofthe economy and the society, transforming of the country’s power structure, and reduction of the public administration areas are also some important factors whichhave influence in the process of the development of administrative rules.As suggested above, this thesis tries hard to establish the control of the idea ofadministrative rules on the general rules outside of administrative legislation throughcorresponding argumentation, make clear the nature and types of administrative rules,and further on construct effective systems of the formulation and regulation ofadministrative rules. Based on this, the thesis also evaluates and analyzes generalregularity of future development of administrative rules, pointing out that presenttheoretical frames are cannot bear the policy attributes of administrative rules.Importance need to be attached to disciplines of Constitution, Legislation Law and theinteraction between Administrative Law and those relevant disciplines likeAdministrative Science and Policy Science. Unified understanding formed through thisway on administrative rules inside and outside academic circles of Administrative Lawcan to the largest extent help to achieve the value and function of administrative rules.