On The Morality Of Administrative Normative Documents

As a kind of administrative norms that can be formulated by all levels of governments and government departments,administrative normative documents play an important role in Chinese administrative management practice.However,it is the most problematic one in all kind of administrative norms as well.Some administrative normative documents are illegal,which perform as transcending authority,violating the superior law,etc.;some administrative normative documents violate the official morals and social moral requirements,which are injustice,badness,and so on.Compared with the illegality of administrative normative documents,the moral misconduct of administrative normative documents is undoubtedly more fundamental and even worse.Therefore,the supervision and management of administrative normative documents should not only have meet standards of legality,but also have meet the requirements of morality.On May 7,2018,the Central Committee of the Communist Party of China issued the "Socialist Core Values into the Legislative Amendment Plan for the Construction of the Rule of Law"(hereinafter referred to as the "Plan")which calls for the full integration of socialist core values into the socialist legal system with Chinese characteristics.On May 31,2018,the State Council issued a Notice on Strengthening the Formulation and Supervision of Administrative Normative Documents(hereinafter referred to as the "notice")explicitly requests that when drafting administrative normative documents,it should assess whether the administrative normative documents conform to the socialist core values.Core values are assessed.Obviously,the Notice is the implementation of the relevant spirit of the Plan,the evaluation of whether the administrative normative documents conform to the socialist core values is also an important measure to integrate the socialist core values into the administrative normative documents.The core values of socialism are essentially moral.The assessment reflects the state's requirements for the morality nature of administrative normative documents.This article takes the morality of administrative normative documents as the topic,and tries to discuss and study this issue theoretically.In the introductory part of this article,firstly,the article explain reasons why take this issue as topic detail.At the meanwhile,the problem awareness and research value are summarized in this part.Secondly,this part reviews and hackles the relevant academic research,and point out the shortcomings of existing research.The last part of the introduction puts forward the research thinkings,research methods and possible innovations.The first chapter is the fundamental theoretical part of this article.The goal is to define the key concepts involved in this article.The first section of this part firstly expounds the administrative normative documents,including the meaning of administrative normative documents,the characteristics of administrative normative documents,the classification of administrative normative documents and the functions of administrative normative documents.The second section explain the definition of morality and classifies morality.The morality include private morality and public morality,bottom line morality and high standard morality,legalized morality and non-legalized morality,individual morality and institutional morality,and individual morality and group morality.In addition,this section summarizes the functions of morality,including the improvement of social individuals,the improvement of social systems,the maintenance of social order and the transformation of social relations.On the issue of moral evaluation,this part defines moral evaluation,points out the characteristics of moral evaluation,and analyzes the development trend of moral evaluation in modern society,including more emphasis on the moral evaluation of social system,more emphasis on the moral evaluation of state officials,and more emphasis on giving play to the rule of law in morality,the guarantee function in evaluation.Lastly,this part explains the morality of administrative normative documents,and holds that the morality of administrative normative documents includes three parts:basic elements—Morality of who making administrative normative documents,quality elements——the morality of the contents of administrative normative documents and the safeguard elements——the morality of form of administrative normative documents.This section also makes a special explanation on the morality of the form of administrative normative documents,pointing out that the morality of the form of administrative normative documents is the requirement of the good quality of the form of administrative normative documents,which belongs to the"morality" in Fuller's theory of legal morality.The main content of the second chapter is to summarize the problems of moral anomie of administrative normative documents in China.The first section of this part summarizes the moral anomie of administrative normative documents in the main dimension,which is mainly embodied in the abnormal value thinking of government officials,including instrumentalist thinking,the standpoint of departmental interests,the intention of power rent-seeking,the concept of formalism and irresponsible attitude.On the one hand,formalism can be divided into following the trend of thinking,"taking the doctrine of thinking" and laying stress on formulation rather than implementation of thinking,irresponsible attitude is reflected in the lack of sense of responsibility,improper mentality,sloppy style of work,not thinking of progress and so on.The second section of this section summarizes the moral anomie in the content dimension of administrative normative documents,mainly including the illegal derogation and the establishment of the rights and obligations of the counterpart,the protection of the interests of the department,violation of the upper law,violation of public order and good customs and non-enforceable.Among them,the rights and obligations of derogating from the law and adding the counterpart include the substantive and procedural aspects.The emphasis is that the administrative normative documents set unreasonable procedural obligations for the administrative counterpart.The duty of fork or blank zone is to protect the interests of the Department and to protect the interests of the Department by seeking the interests of the subordinate units;the violation of superior law includes transcending authority,transcending range and transcending mode;the violation of public order and good customs is mainly manifested by improper interference in customs and customs and the destruction of local culture.The third section of this part summarizes the moral anomie in the form dimension of administrative normative documents,which is mainly embodied in the lack of normative procedures,confusion and unclear expression of terms,non-standard structure and expression of provisions,repetition and conflict of provisions,as well as the changes and uncertainties in the formulation process.The main content of the third chapter is to discuss the realistic background,theoretical basis and main significance of the moral requirements of administrative normative documents.The first section of this part illustrates the realistic background of the moral requirements of administrative normative documents,including the standardization and institutionalization of the socialist core values,the implementation of the strategy which aims at governing the country with combination rule of law and virtue,the strengthening of the supervision and management of administrative normative documents,the transition from control to service,the increasing requirements of demand people's justice and fairness and the improving the level of law-based administration.Secondly,this part analyzes the theoretical basis that the administrative normative documents should meet requirements of morality.It holds that the theoretical basis consists of five aspects:the theory of institutional morality,the theory of morality the theory of substantive legitimacy,the theory of the relationship between law and morality,and the theory of good governance of the government.Thirdly,it explains the significance of putting forward the moral requirement of administrative normative documents,moulding the good quality of administrative normative documents,safeguarding Administrative counterpart's legitimate rights and interests and promoting the effective implementation of administrative normative documents,enhancing the credibility of the government and leading the construction of social morality.The fourth chapter is to analyze the system and specific requirements of morality of administrative normative documents.The morality of administrative normative documents is composed of three aspects:the basic elements-the morality of subject who legislate the regulation;the quality elements-the morality of the contents of administrative normative documents;the safeguard elements-the morality of the forms of administrative normative documents.The administrative normative documents and morality also include three parts:subject,content and form.Firstly.the moral requirements of subject mainly embodied in the five moral values that government officials should possess,namely,loving the people,being fair,honest and trustworthy,being honest and honest,and being industrious,frugal and pragmatic.The second section of this part analyzes the moral requirements of the content dimension of administrative normative documents,mainly including the moral requirements of legitimacy,fairness,goodness and implementability.Each aspect includes a number of specific requirements.The third section of this part summarizes the moral requirements of the formal dimension of administrative normative documents,and holds that the moral requirements of the formal dimension of administrative normative documents are mainly embodied in several formal qualities,including the standardization of the formulation procedures,the accuracy of the provisions and language expressions,and the unity of the administrative normative documents themselves and the stability of administrative normative documents.The fifth chapter is to explore the realization path of the administrative normative documents.To begin with,this part analyzes several basic principles that should be adhered to in order to realize administrative normative documents.It includes the principle of combining rule of virtue with rule of law,the principle of combining comprehensive promotion with emphasis,and the principle of combining administrative self-control with external supervision.In addition,this part points out the basic ideas that should be adhered to in improvement the national legislation of administrative normative documents,including control strictly,emphasis on moral value guidance,strengthen external supervision,improve the responsibility system and mechanism,and highlight procedural control.As to form of administrative regulations,it can be adopted as either documents of administrative regulations or unified legislation on abstract administrative acts which is legislated by the National People's Congress w may also consider of the government in the future.The third section of this part discusses the internal mechanism of strengthening the construction of administrative morality.firstly,it institutionalizes the administrative ethics of public affairs;secondly,it constructs an effective mechanism of moral propaganda and education in administrative affairs;thirdly,it establishes an evaluation mechanism of administration according to morality.Section IV of this section focuses on three types of external mechanisms to realize the morality of administrative normative documents,namely,the NPC's examination of administrative normative documents,administration turn examination of administrative normative documents of the government offices at lower level,and the administrative reconsideration and litigation's examination of administrative normative documents.As for the examination of administrative normative documents filed by the National People's Congress,one is to increase the ethical examination of administrative normative documents,the other is to bring the administrative normative documents formulated by government departments into the scope of the examination of the National People's Congress,and the third is to strengthen the construction of the National People's Congress itself and improve the ability of the National People's Congress to examine administrative normative documents.When it comes to the higher administrative organs examine documents made by lower administrative organs,The first measure is to increase the examination standards of rationality,The second measure is to move forward the time of filing examination.The third measure is to clarify and refine the legal responsibility after filing examination,and the fourth is to strengthen the self-construction of government legal institutions as filing examination institutions.As for the joint review of administrative reconsideration and litigation on administrative normative documents,it should be emphasized to establish a reasonable standard of incidental review criteria and introduce the consideration of moral factors,in order to enhance the protection of administrative reconsideration and litigation on the morality of administrative normative documents.