Study On Legal Regulation Of Administrative Plan

Administrative plan is one of the most complicated phenomena in modern government behavior, and is also a more prominent and greater practical issue in contemporary administrative law practice. But in administrative law fields, legislation of administrative plan does not form effective system, theory as yet. Administrative plan with unilateral, discretion and complexness, therefore, it as an important means of government intervention, extensively in act on economic, social and cultural life. But in practice, a large number of administrative plan dissociate beyond the law, and lack of legal constraints, resulting in the abuse as to the harm of citizen and social organizations rights. Therefore, the comprehensive system study on legislation and the rule of administrative plan has important theoretical and practical significance. The research is based on the comprehensive analysis and summary of overseas administrative plan legislation theory and practice, Germany, Japan and Taiwan in particular, and on our national situation and legal practice, by using the comparative and analytic methods of social science, analyzing the basic category, current system situation, basic ideas, basic principles, the planning discretion and law regulation model, with the perspective in advanced legal regulation and the supervision, as to advance the legal regulation system of administrative plan.The full text is divided into five chapters.ChapterⅠ:The category analysis of the administrative plan. This chapter analyzed and confined the basic concept of the administrative plan, analyzed the basic features of unitary, comprehensive, legislative, discretion, mandatory and dynamic, planned and judged the complex types and the nature of administrative plan, and explained the historical background and the function of administrative plan, stressed that the action of administrative plan has the function of restraining and guiding to administrative body and private parties.ChapterⅡ:Comparative research of administrative plan law system. This chapter focused on using the method of comparative analysis, analyzed the basic experience of administrative plan legislation of the continental law system and the common law system, such as that of Germany, Japan and Taiwan, and so on, including the contents and main experience of legislation mode, formulation procedure, legal effect, implementation, changes and abolishment and legal remedy system, then analyzed the present legislation situation in China, pointed out the lack of guiding and regulating of a basic law of administrative plan, the lack of democratic participation mechanism and the lack of relief guarantee for the lawful rights and interests of planning parties. It also analyzed the basic problems of rule of law of administrative plan, that is why and what can be legalized, thus revealed the inevitable trend towards legalization of contemporary administrative plan.ChapterⅢ:Basic notion, principle, and mode of legal regulation of administrative planning. This chapter described that administrative planning should establish the ideas of rule of law of guarantee of human rights and power restriction, and apply the principle of law reservation and law priority, then analyzed in depth the administrative planning discretion, model of legal regulation and their system choice, pointed that administrative plan exists the extensive creation space. Planning discretion and general discretion not only has the contact, but also the difference. On one hand Planning discretion has the certainty of its existence to give play to the extensive active effect with reasonable nature and to the society, on the other hand power of planning discretion is easy to be abused and giving negative effects to society. In practice, the administrative planning discretion exists serious out-of-standard in legislation and lack of unity and uncertainty, lack of democratic and scientific procedure, lack of supervision and examination system in the process of discretion.The regulation patterns of the planning discretion could use the mixed rules of hard method and soft method developed simultaneously. And hard law governance modes included perfecting relevant law, formulating administrative plan law, perfecting the relevant supervision and relief system; Soft law governance modes included the principle to govern of the soft law, formulating the datum of the planning discretion and establishing a benchmark administrative self-discipline mechanism, etc. Thus has provided the theory upholstery for the following two chapters of proofs and the elaboration.ChapterⅣ:This chapter posed three basic control modes from the prospect of legislation rules:Law regulation, programming regulation and procedural law regulation. Analyzed and pointed out the administrative law’s important function and effects in administrative plan, the functions of regulating and controlling administrative power can’t be instead by other laws. The principle of administrative law can be concentrated interpreted as the principle that the plan organization is determined by law, namely administrative planning exercise right must be authorized by law and the constraint; Analyzed two structure patterns systematically, pointed and expounded the three principles of administrative law:the principle of planning by law, the principle of democratic participation, the principle of scientific planning and the principle of trust and protect, and so on. At the same time, divided the scope of administrative planning regulation for the principle, including dividing the rights and obligations of parties of administrative planning relationships properly and regulating the border of discretion and the purpose and conditions of it. Finally, the core of the administrative planning, namely the procedural law regulations of administrative planning systematically was interpreted further, including analyzing the advantages and disadvantages of the legislating mode of our state’s administrative procedural law and the significance of the legalization of administrative procedure, here the general procedure of administrative planning and the Introduction of determination procedure of planning were also be analyzed.ChapterⅤ:The supervision and relief of the administrative plan. This chapter combed and demonstrated the supervision and relief system of administrative plan from the point of post-monitors. In the administrative plan for supervision mechanism, outlined the administrative planning monitoring mechanism of the form and content, including authority control, the executive-level monitoring, surveillance and social control trial of four types of system model. In the administrative plan for relief mechanism, analyzed the necessity and feasibility of the administrative plan for judicial review, pointed that this trend is not only necessary but also feasible; Combining with the foreign judicial practice and the status of China’s national conditions, analyzed and developed the content and methods of judicial review of administrative plan.