A Study On Government Governance Reform And The Development Of Administrative Law

In the period of high-speed transformation of politics,economy and society,Chinese government has encountered many increasingly severer problems,such as official's corruption,unbalanced development,poverty,and environmental pollution,let alone use of force and violent resistance against law enforcement,which reflect that the public administration mode with the characteristics of government management has come to crisis.To tackle the crisis and challenges,'Decision on Major Issues Concerning Comprehensively Deepening Reforms' was adopted at the Third Plenary Session of the 18th Central Committee of the CPC passed.The Decision first proposed to advance modernization of the state's governance system and governance capability,claiming transforming government functions,deepening administrative system reform,exercising government administration in an innovative way,so as to assure government's effective governance.In 2014,the Decision of the fourth plenary session of the 18th CPC Central Committee elaborates for the first time to the idea that comprehensively promoting the rule of law is the greatest guarantee of the state's governace system and governace capability.In 2017,the 19th National Congress of the CPC explicitly put forward that the rule of law for the country,the government,and society will be ultimately established,and the modernization of China's system and its capacity for governance will be basically achieved.The shift from government management to government governance is a major adjustment of China's governing strategy and is also a synchronous process of government's shift from ruled by law to rule of law,which will deeply influence the future of our country's administrative law.This paper's logic lies in the governance in China context and its connection with administrative rule of law.By reflecting on the changes government governance mode triggered on government management,analyzing the dilemma of administrative law system initiated by that governance reform,under the approach of structural functionalism,this paper discusses the solution to response the changes that future administrative law system may occur.This paper mainly includes four chapters and an introduction part.Chapter one briefly states the basic theory of governance and its relation with administrative law.Governance is a concept with rich connotation.Government governance is rooted in local semantics of socialism with Chinese characteristics.Good governance is the performance and result of governance capability,and ruling of law is the medium of government governance to achieve good governance.In Chinese context,government governance is mainly characterized with multi-body participation under government's leadership,multiple interactions of public power,governance based on consultation and cooperation,people oriented administrative purpose.China's government governance differs from western scholars' understanding of public governance and meta-governance.By contrast,it emphasizes more on a responsibility and an ultimate care which government should take on market,society,and citizens.It not only requires that the government adheres to the people-oriented principle to cultivate enterprise's,social public organization's and citizen's abilities of managing state affairs,economic&social affairs,but also requires government to actively reform its administrative system and transform its functions.Viewing from the history of our government's public administrative models evolution,we can find China's government governance actually negates state's ruling and government management mode.It rises from the management crisis and naturally couples with the rule of law.Government governance's correspondence with the rule of administrative law on the same basis of political philosophy,intrinsic value,and goal's pursuit constitute an important component of modernization of national governance and comprehensively promoting the rule of law.Chapter two mainly discusses how the governance mode changes the form and contents of government management mode,and under this circumstance,the development trend of administrative law.Government governance emphasizes democracy and co-governance,which reformed supervision mode characterized by power monopoly.Governance,as word,has a function fusing politics and administration,so it is the best description of democratic administration.Decomcratic administration is crucial for government governace,and the both rely on each other.The history of China's development of administrative rule of law and reform of administrative system since 1978 is a process that optimizes government's power structure and returns the power to the market and society,which breaks away government's public power monopoly,build up a relative equilibrium in power system,and makes it necessary for the government negotiate and cooperate with the market and society on the public affairs.Responding to this phenomenon,democratic principles permeate public administration,which guarantees the direct participation of enterprises,social public organizations,and citizens in public administration.Under this condition,government governance changes at least two aspects of the public administration mode in China.The first lies in internal dimension,which means government's self-reform.It requires that government's functions shift from monopoly management to collaboration service,the organization structure from bureaucratic management to flat structure,where government values more on fairness and justice than on efficiency-centered mode.The other dimension,i.e.the external dimension means a kind of cooperative governance between the government and enterprises,social public organizations,and citizens.It changes into multiple subjects from dual-structure of government-counterpart,pursues optimization of public products and services,makes one-dimension supervision transform into diversified governance with administrative tasks oriented,and asks for more soft governance such as rules-making with negotiation,outsourcing of public service and privatization.Chapter three aims to discuss the challenge that government governance brings to the administrative law.Current administrative law is made under the ideal of government management trying to set up a government of legal system,which only provides limited interpretation and regulation on government governance.In the view of ideal and value orientation,administrative law under management mode takes efficient operation of administrative power and public interest as its task,pursuing the goal of law's order and efficiency,while administrative law under governance mode requires the comprehensive control the administrative power and protect citizen's rights,which emphasizes law's liberty and justice valve.In the internal dimension of government governance,government functions setting and power allocation under management mode lacks legalization,the reform of government system shorts lacks regulation,the procedure of excuting reform measures are still wanting,and reform's mechanism of monitoring and evaluation is obsolescent.In the view of structure of government governance's multiple subjects,traditional theory of administrative subject can not explain administrative legal status of enter:prises,social public organizations,and citizens when they participate in public affairs.Under the governace mode,the administration organization law lack regulation on government's dominance and its responsibility,the border of cooperation and co-governace,and non-governmental subject's responsibility.From the point view of government governance's diversified behavior,transfer of government behavior's democratic legitimacy,public-private hybrid of behavioral agent and legal relation,dire straits of administrative act's formalization,and supervision and remedy mechanism's dynamic expansion shall shake the foundation of administrative action theory,which meanwhile calls for changing one dimensional administrative procedural law,correcting undemocratic factors,public law's sole dominant,and procedural ossification in management mode,reforming the defensive system arrangement of non-governmental subjects' passive participation.In the aspect of complexity of government governace,public law's supervision and remedy under the management mode cannot effectively adjust the mixed public-private relation,which is reflected in the low integration of supervisory power in administration,slack supervision on administrative process,and insufficient professional regulatory capabilities.Meanwhile,due to the limited function of solving disputes in the administrative lawsuit,backword reform of administrative adjudication system,and lack of coordination of multiple disputes resolution mechnism,it restricts the scope and depth of rights protection of the administrative remedy system.Chapter four mainly discusses the construction path of future administrative law for responding to what governance brings about.Since administrative laws adjust public administration,government governance changes public administration's management mode,it is necessary for the administrative law to response to change by reshaping its structure and adjusting its function to effectively regulate government governace order.In the view of structural functionalism,the structure of administrative law should set up modest legislation,autonomic administration,and active judiciary&supervision,in order to satisfy the people's yearning for better life and to promote the administrative law's new development under the principle of the democratic administration,political correctness,responsibility orientation,administration's self-control and double review.In the administrative organization law,we should intensify law's regulation on government's power allocation&function orientation,to construct legal procedures and mechanism of the reform in execution&supervision's administrative system;and in the guide of administrative goal&task execution,we should take the network developed by the multi-dimension Interaction of government enterprises,social public organizations and citizens as administrative subject,by which sets up administrative guarantee liability to regulate government's dominance,clarifies the border of co-governance between the private and the public,and the scope of non-government bodies' auxiliary duties,and find who is to blame by identifying the relevancy of administrative act,public power and public function.In the administrative act law,we should promote administrative act theory's innovation in the aspect of public administration,set up administrative act system with policy making and task execution,regulate discretionary power in the mix of public law and private law,soft law and hard law that government could choose in administrative acts,and put diversified administrative acts into accepting scope of administrative lawsuit under the principle of the judicial mimimalism of one case on trial.Governance of procedure act as the foundation of ruling diversified administrative act under law,so administrative procedure law is the most important part of administrative law in future.The design of administrative procedure law should blend the value of law's fairness and justice in rules of procedure with the aim of controlling and regulating behavior of sharing administrative power,connecting government's internal acts and external administration,guaranteeing government governance's interaction,setting minimum procedural rules and interactive procedure for the purpose of ensuring that rules could be made through negotiation,and administrative task could be executed by cooperation.In the administrative remedy law,we should propel innovation of power supervision and rights remedy,set up a power versus power supervision system in which supervisory commissions' political supervision takes as center,procuratoral organ's legal supervision as guarantee,administrative organ's professional supervision as key.Meanwhile,we should innovate ways which administrative lawsuits defuse disputes,reform administrative adjudication system,adjust the structure of diverse resolution mechanism,and establish a right-oriented remedy system.Besides,though judicial suggestions and joint conference,people's court should help government find governance bug,innovate governance pattern,span governance trap,to realize the rule of law in government governance.