The Legitimacy Of The Legislative And Administrative Restrictions

The research object of this dissertation is the legitimacy of administrativelegislation power and its limitation. From late nineteenth century to the earlytwentieth century, Civil law and Common law countries delegated legislative power toadministrative organ in order to satisfy the needs of social management. Asadministrative power was expansion, People worried about the formation ofadministrative autocracy and distrusted the legitimacy of this authority-administrativelegislation power. By the early nineteen twenties, the themes of the legitimacy ofadministrative legislation power and its limitation were wildly discussed in Westerncountries. Today these two questions are far from satisfied. So we need to solve the seproblems.This paper consists of five parts.The part of introduction of this paper is to answer that why to choose the project.Review the discussion about the legitimacy of administrative legislation power. In thisdebate, there are two factions: one party considered that the administrative legislationpower had no legitimacy. The reasons as follow: Firstly, administrative legislationpower contrary to “Principle of Popular Sovereignty”; Secondly, administrativelegislation power violate “Principle of Separation of Powers”; Thirdly, administrativelegislation power contrary to “Natural Justice”; Fourthly, administrative legislationpower contrary to “Principle of Contract Legislation”; Fifthly, administrativelegislation power go against “Principle of granting legislative power ban”. Otheraccounted that the administrative legislation power had legitimacy. There were threetrain of thought: First, efficiency idea. This approach deemed that social needs werethe legitimacy of administrative legislation power. Second, scholars considered thatthe legitimacy of administrative legislation power stem from Constitution andlaw authorization. Third, scholars thought that administrative legislation power inaccordance with “Justice Principle”.Chapter I is designed to scholars’ analysis views that about the legitimacy ofadministrative legislation power. Firstly, I wanted to respond to scholars whichclaimed that administrative legislation power had no legitimacy. With thedevelopment of democracy, chief executive was elected and administrative agencieshad changed--public election and cabinet system. Public officials had been able to represent the people and to the people responsible for the legislation. Administrativelegislation power accorded with “Principle of Popular Sovereignty” and “Principle ofContract Legislation”. In theory, Administrative legislative power against the principleof natural justice is irrefutable. In practice, for administrative legislative power waswidely authorized,“Principle of granting legislative power ban” had been deprecated.Although “Principle of Separation of Powers” is principle for power configuration,this principle have no been used in all countries. The legitimacy of administrativelegislation power had no lie in this principle. Secondly, Analyzes the scholars ideasthat the legitimacy of administrative legislation power. Scholars had not found thelegitimacy of administrative legislation power. I believe that “Architecture Principlesof State Power” can explain the legitimacy of administrative legislation power. Lastly,I want to explain two core concepts of this paper, and then give out the connotation ofthe legitimacy of administrative legislation power. The connotation of the legitimacyof administrative legislation power is that administrative legislation power conformsto “Principle of Popular Sovereignty” and “Principle of Law Embody the Will ofPeople”. The legitimacy of administrative legislative power can be divided into thelegitimacy of administrative legislative power set and the legitimacy of administrativelegislative power to exercise.Chapter II is designed to explain the legitimacy of administrative legislativepower setting. Firstly, I want to introduce “Architecture Principles of State Power”.Think “Principle of Popular Sovereignty”, from the perspective of the attribution ofpower，all power is from the people. The claim has become axioms, only the setting ofadministrative legislative power must comply with the principle that theadministrative legislative power can be accepted by people. So,“Principle of PopularSovereignty” can be used as a judgment standard of administrative legislative powerset has legitimacy.“Principle of Law Embody the Will of People” means that lawsrecord and public people’s wills. The setting and exercising of legislative power is tofocus on the people’s wills. The administrative legislative power is a kind oflegislative power, it must be able to focus on the people’s wills. In other words,“Principle of Law Embody the Will of People” can be used as a judgment standard ofadministrative legislative power set has legitimacy. Secondly, Demonstration ofadministrative legislative power set accorded with “Architecture Principles of StatePower”. The reasons as following: One is that chief executive election, the other is that the changes of administrative agencies. For these two reasons, the administrativeorgan can representative and responsible to the people. Administrative legislationpower accorded with “Principle of Popular Sovereignty” and “Principle of LawEmbody the Will of People”. The administrative legislation power has legitimacy.Lastly, although the administrative legislation power has legitimacy，we need to limitthe administrative legislative power. Any power only within a certain range haslegitimacy. Limit the principle of administrative legislative power set including:Retention of Law Principles; Authorize Clear Principles; Re-appointed in principleprohibited.Chapter III points at explain the legitimacy of administrative legislative powerexercise. Firstly, the legitimacy of the administrative legislative power exercise lied inthe administrative legislative power exercise complied with “Architecture Principlesof State Power”. In “Transmission Belt Model” and “Expertise Model”, scholarsdeemed that the administrative legislative power exercise rooted in administrativelegislative power exercise conformed to law. However, It is difficult to persuadepeople, the reason is that law can be illegal. In “Interest Representation Model” and“Cooperative Governance Model”, scholars deemed that democratic process was thelegitimacy of administrative legislative power exercise. Law and democratic processare only means that the administrative legislative power exercise can complied with“Architecture Principles of State Power”. Secondly, we must induce some system toguide administrative legislative power exercise. There are Supervision oflegislation, judicial review and administrative procedures.Chapter IV is designed to find the problem of China’s administrative legislativepower China’s administrative legislative power and its regulation. In theory, we findthe legitimacy of administrative legislation power. In practice, we introduce theprinciples and the systems in order to limit administrative legislative power. The nexttask is to solve China’s administrative legislative power. First of all, we find thatChina’s administrative legislative power have legitimacy. Secondly, we need toanalyze the problems of China’s administrative legislative power. These problemsinclude: first, the legislative power of the authority set broad; Second, authorizedlegislation set anomie; third, the democracy of administrative legislative powerexercise. Finally, we should take measures to solve the problem. There measures asfollowing: reducing the power set; regulating authorized legislation; introducing public participation system.