Research On Administrative Law Enforcement Basis And Its Path

The choice of the basis for administrative law enforcement and its path evolution are not all in accordance with the track set by the legislator for administrative power.The practice of administrative law enforcement not only has "no law,no administration",and there is also a "no law and administrative" governance appeal in the context of Chinese local administrative,especially in the process of reform and opening.Focusing on the basic propositions of the basis of administrative law enforcement,adopting methods of argumentation such as normative analysis,empirical analysis,and field investigation,and clarifying the relationship between the law-oriented approaches and the policies-oriented approaches in administrative law,which constitutes the main body of the text.The consequence is that with the advent of the era of social rule of law,the administrative law enforcement basis concept shaped by the era of free and rule-of-law countries strictly follows the bottom line of the rule of law of "without law without administration",but it cannot achieve the goal of substantive rule of law.The traditional administrative law pursues the only path of law enforcement and even obscures the complexity of public administration.It tries to use legal norms as a way to cover the propositions of laws and policies,government and political parties,and it is difficult to provide explanatory power for administrative law changes.Through the implementation of administrative enforcement violations and repeated enforcement,administrative law enforcement basis based on conflicts and poor administrative implementation,it is considered that the basis of administrative law enforcement is in the "legal-government" analysis framework and ignores administrative law in the "party-government" analysis framework.Therefore,it is necessary to reorganize the research position of the basis of administrative law enforcement and reset the theoretical analysis framework of the basis of administrative law enforcement.Taking the basic position of administrative law as the starting point and examining the basis of administrative law enforcement in different positions,it is beneficial to accurately understand the essence of the concept of the basis of administrative law enforcement.The legal and doctrinal position of the basis of administrative law enforcement pays attention to the normative connotation and logical connotation of administrative law,and focuses on transforming and consolidating social facts and non-legal norms into generalized administrative law norms.Then,through case interpretation,administrative reconsideration and administrative litigation practice,the case justice is realized.In contrast,sociology of law of administrative law enforcement basis focuses on the factual description of the empirical dimension,and has the power of interpretation focusing on the cognitive preferences of localized administrative law and the interpretation of administrative law practice.Therefore,in the study of administrative law enforcement basis,it should be avoided from the perspective of dogmatics of administrative law or sociology of law.Starting from the constitutional attributes and administrative law attributes of "administration","enforcement" and "execution",this paper analyzes the elements of administrative law enforcement one by one.The so-called administrative law enforcement basis refers to the administrative subject in the process of administrative law enforcement to choose sovereign will,constitution,law,policy,etc.as a law enforcement basis for handling public affairs and fulfilling administrative tasks.However,the basis of administrative law enforcement claimed by this legal doctrine is difficult to respond to the shortcomings of administrative rule of law practice.This is reflected in the actual impact of the policies,experience,facts and other factors on the democratic political structure on which the administrative law enforcement is based.It can be seen that there is a tension between the formal rule of law and the substantive rule of law in the basis of administrative law enforcement and its choice.Therefore,it is necessary to resolve this conflict in an administrative law analysis framework that is both legal and effective,that is,within the Theory of Government Under the Rule of Law(GUL).The reason is that GUL not only adheres to the normative theory of administrative law research,but also conforms to the strict logic of the legal doctrine of the law,and responds to the empirical theory of administrative law practice to accommodate the factual description of the social science law position.If the position is fixed,the path tends to appear.In view of the analysis of dogmatics of law of administrative law enforcement basis and sociology of law,in fact,two different research trends have emerged,that is,the normative research and empirical observation of administrative law enforcement basis propositions presuppose a two-track path.An academic position that must be accounted for is that the policies-oriented approaches must be firm in constitutional stance and must comply with the norms required by administrative law.GUL sets the boundary of legality for the argumentation on dogmatics of law of law-oriented approaches.First,determine the concept of law-oriented approaches.Through the analysis of the concept of law enforcement and the competition of positions,the so-called law-oriented approaches is that the administrative body should only rely on the law in the process of fulfilling the established administrative decisions and achieving administrative goals."Dependence" is the source of the administrative power to represent the state of the first judgment of public administration,and it is the concrete embodiment of the application of administrative law.Second,affirm the necessity of implementing the law.The principle of law production by the government and the principle of legal control by the government are the administrative legal basis for the executive body to enforce according to law.It has become a common sense in"rule of law in China" that the basis of administrative law enforcement focuses on law enforcement.This necessity comes from the constitutionality drive of constitutional norms,the law drive of dogmatics of administrative law and the authoritarianism drive of ruling by law.Compared with the reasons of the normative level,especially the elements of the ruling party in the administrative law norms have a more realistic driving effect on promoting the formation of law-oriented approaches.Finally,we should pay attention to the introspection of law-oriented approaches.The path of introspection by law is designed to examine the unique proposition of law-oriented approaches from a counter-evidence standpoint.From the path of introspection of"legality",the law-oriented approaches is not the only path of administrative law enforcement basis.In practice,according to the law enforcement path,there are phenomena such as the loopholes in the legislative system,the poor effect of the administrative law according to law,the conflict of administrative stratification structure,and the space for the referee to expand the policy,thus affecting the quality control of the regulation according to the law.In the framework of GUL,the study of policy implementation aims to incorporate the policies-oriented approaches into the dogmatics of administrative law so as to shape it through legal norms.The importance of policies for national governance is self-evident,especially the policies involving reform and opening up have often become the main driving force for the rule of law government to govern according to law.However,in the long-term development process,the administrative law is concerned with the standardization of the internal discipline system and the lack of technical rules for dialogue with the governance system of the ruling party.The analysis of the motivation of public law on the policies-oriented approaches shows that it should meet the requirements of adhering to the norms of administrative law,responding to changes in administrative law,and complying with the governance mechanism of the unity of the leadership of the Party,the position of the people as masters of the country and law based governance.The analysis of the factors according to the policies-oriented approaches shows that the policy provides the administrative law schema of the administrative law,the legal transformation,the full-coverage governance,and the administrative law to regulate the real political norms and instrumental rationality.On this basis,the regulatory territory of administrative law has achieved a major leap from public administration to real politics.On the basis of exploring the legal theory of policy administration,this paper,by evaluating the questioning theory of "legitimacy",and by virtue of the analytical framework of"law-government" and "ruling party-government" provided by the principle of "good governance by law",puts forward the concept of the policies-oriented approaches.In accordance with the policies-oriented approaches is when there is no specific provision in the law on administrative tasks and even did not make provision,but the administrative subject based on public interests and administrative tasks such as time limit,the administrative discretion,under the principle of constitution and administrative law based on type of creating policies and operating policies of the execution of public administrative affairs.Undoubtedly,the policies-oriented approaches itself is full of contradictions.It contains the separation of the state of"legal" and "effective",the separation of laws and policies,and the tension between the legal and policy governance effects.Observed from the practice of administrative law,the specific control methods according to the policies-oriented approaches are mainly manifested in four types:"policy leading","just and effective" and "normative substitution".In the process of shaping and the policies-oriented approaches according to legal norms,we should not neglect the party's policy and daily legal system,inner-party norms and constitutional legitimacy,ideal model and daily rule of law and other factors.To verify the basis of the above-mentioned administrative law enforcement and the path of administrative law enforcement is indeed a "true problem",we select the"asking for instructions" that are common in the practice of daily administrative law enforcement,and take GUL as the analytical framework,thus observing two different paths according to the law-oriented approaches and the policies-oriented approaches.Studies have shown that the request can be used as an analysis to demonstrate the minimally invasive incision of the formal construction of Weber-style state power,and through the phenomenon of representation can prove that the law-oriented approaches is not the only track of the government's rule of law.According to the administrative jurisprudence of "asking for instructions",it is found that there are discourse transformations of facts and norms,normative substitution of laws and policies,legal absenteeism and power logic of policy appearance.It can be seen that there is a clear separation and overlapping governance logic between the law enforcement path and the policy implementation path.On the one hand,it is necessary to realize the rationalization and democratization of the policies-oriented approaches,while strictly controlling the policy to create exceptions in the legal system so as not to affect the governance of political authoritarianism;on the other hand,to implement the governance style with political propositions turning to legal issues according to the policies-oriented approaches?Under the constitutional framework,the proposition of administrative law that leads political issues to social subjects is accustomed to depends on preset and verifiable legal logic and rules,and the law allocates corresponding democratic political resources.The "asking for instructions" example also shows that legal facts and legal evidence are intentionally tailored or screened,and legal facts are easily replaced by empiricism.Therefore,it is difficult to eliminate the hidden danger of "rule of law escape" in the law-oriented approaches.And the lack of administrative efficiency value,the hidden loop of legal rules,the preference of legislative impulses,the bias of local self-government behavior,and the avoidance of administrative responsibility are the main reasons.Thus,the basis of administrative law enforcement and the path of law enforcement basis are based on the types of a two-track structure that is the law-oriented approaches and the policies-oriented approaches.Looking into the future,the rule of law government is the legal normative orientation of the path of administrative law enforcement basis,and the rule of law party is the law effective guarantee of the path of administrative law enforcement basis.Specifically,the dual-track system has a structural force and has an ability to interpret administrative law changes since the reform and opening up.The reasons for the establishment of the the path of the dual-track proposition include the enforcement sovereignty and enforcement law orientation contained in the basis of administrative law enforcement,as well as the path dependence arising from the interaction between the Communist Party and the Administrative Law.Paying attention to legal policy is not a drum and a call for the super-law policy and the exception rule,but the maximization of the function of the law policy on the basis of adhering to the rule of the rule of law.Under the realistic influence of the ruling party on administrative law,the path of administrative law enforcement basis will still present a dual-track structure.This not only conforms to the concept of "government" in China,which has always been divided into "government under law" and "government under political parties",but also responds to and explains the practical jurisprudence of daily administrative law,and provides a legal doctrinal analysis tool for the regulation of modern democratic politics by administrative law.