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A Comparative Research On Administrative Interpretation Modes In China And The United States

Posted on:2021-01-28Degree:DoctorType:Dissertation
Country:ChinaCandidate:C R SunFull Text:PDF
GTID:1366330611971864Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
Generally speaking,administrative interpretation means administrative agencies' interpretation or explanation of legal texts.In modern countries,administrative interpretation involves legislative,administrative,judicial and other state organs.Therefore,the mode of administrative interpretation of a country,namely the system and practice of administrative interpretation and its legal control,embodies the relations among different state organs of the country and the important characteristics of a country's legal system.China's mode of administrative interpretation could be named as “the authority mode”.This mode is deeply influenced by our country's legal system and practice,and clearly reflects the strong position of our country's administrative organs.When the legal interpretation system of our country was established,it originally focused on the interpretation of legislator.However,after the power of interpretation of administrative organs is recognized by law,it gradually erodes the power of interpretation of legislative organs from system and practice by relying on its powerful administrative power.Since 1981,China has built a unique legal interpretation system.Under this system,administrative agencies have the power to interpret legal texts,which are commonly referred to as administrative interpretations.Its fundamental purpose is to solve the problems encountered by administrative organs in the implementation of a few basic laws and local laws as soon as possible in the early time of the reform and opening-up stage,and to limit arbitrary interpretation of laws by administrative organs as far as possible,preventing administrative interpretation from breaking through legal texts simultaneously.To this end,the legislature distributed interpretation power of different legal interpretation problems on basis of the Soviet "lawmakers' explanation prevails" law-interpreting conception,reserving legal conflicts and gaps in its own hands,allowing administrative interpretation of other ordinary legal interpretations,hoping to control the legality of administrative interpretation content.The administrative interpretation in this system,based on the administrative functions and powers of administrative organs,centered on problems in practice and taking the initiative to formulate normative documents or official documents in accordance with the application,is a legal interpretation system within departments.However,such strict and obscure provisions were not companied by equally strict legitimacy control mechanism,and were maintained almost solely by the authority of the provisions themselves and the interaction between the executive and the legislature.The legislature is not able to control the content of the administrative interpretation,the internal procedures of administrative agencies are closed and biased,and the judicial review has been rather weak.Therefore,this system has only been maintained for a few years,and was soon broken through by the system and practice of administrative agencies' legal interpretation.In terms of system,the provisions promulgated by administrative agencies are often contradictory to the legislators'.In practice,on the one hand,administrative agencies make a large number of administrative interpretations,many of which are beyond the scope of interpretation stipulated by the legislature,explaining legal conflicts or gaps,thus forming the “encroachment of interpretation power” phenomenon.On the other hand,administrative agencies make a large number of administrative regulations,rules and normative documents that explain or repeat superior laws,and ascribe the power of interpretation of these documents to the framing executive agencies,which causes the power of interpretation of the superior laws to sink layer by layer,forming the phenomenon of “the sinking of interpretation power”.Moreover,China's administrative agencies often interpret legal texts in administrative regulations,administrative rules and normative documents,which is also a problem that China's administrative interpretation system cannot solve.American administrative interpretation can provide a lot of experience and lessons for the reform of our administrative interpretation system.The American administrative interpretation model can be summarized as “the authorization mode”.Its system of administrative interpretation is based on the power granted by congress to the executive agencies through legislation,so it can be called "authorization mode".Under this mode,the legality of administrative interpretation is fully and dynamically controlled by the legislative branch,the executive branch and the judicial branch.Under external and internal,ex ante and ex post,substantial and procedural controls,administrative interpretation proceeds along the legal framework without overstepping its boundaries.Among these controls,the legislative and administrative agencies ' control of the legality of administrative interpretation is carried out mainly before and during the interpretation,while the judicial control ex post is the important guarantee of the legality of administrative interpretation.We can summarize the American mode of control over the legality of administrative interpretation as "the overall control mode dominated by judicial control".In the control of the legality of administrative interpretation in the United States,there is a unique practice called "judicial respect".In fact,"judicial respect" contains three different patterns of behavior,one is the court adopting administrative interpretation proved the optimal solution in the case;the other is that the court's reviewing scope being limited by Constitution or statutes;the third is the court,based on consideration of its own reviewing authority or ability,actively lowering some standard of review of administrative interpretation.In addition to judicial respect,courts may also review administrative interpretation strictly,or even assume some attitude against the administrative interpretation.Judicial respect of American administrative interpretation is deeply rooted in its legal system and traditions and is based on the comprehensive and dynamic control of administrative interpretation.The lowerred or restricted examination of the administrative interpretation by the court and the control of the legislative and administrative agencies are generally mutually shaped.Therefore,even if the court takes a respectful attitude,it does not mean that administrative interpretation can do whatever it wants.It can be seen that the control of the legality of administrative interpretation is not an exclusive business of courts-the legislative and administrative branches also need to ensure the legality of administrative interpretation via supervision and control before and after the event.Supporting judicial respect in the absence of other controls would lead to the destruction of the legal system.By comparing the Chinese and American models of administrative interpretation,we can see that the constitutional system and practice,the conception of law and the notion of legal interpretation,as well as the degree of understanding of the administrative interpretation itself,decisively influence the model of administrative interpretation of a country.And according to the experience of the legality control mode of the administrative interpretation in America,based on the system of democratic legislation and clear mandate,if administrative interpretation can be comprehensive and dynamic controlled,especially by powerful courts on all types of administrative interpretation,the meaning of the law can change in a healthier way.Based on this concept,the court should not respect administrative interpretation.Therefore,the ideal system of administrative interpretation shall be in the activation energy and legislature based on the fundamental control,on the basis of judicial control various state organs and revitalize the comprehensive control,the meaning of administrative interpretation for administrative interpretation can better play to the role of passing information between each state organs,the meaning of the law by service inquiry and update.
Keywords/Search Tags:Statutory Interpretation, Administrative Interpretation, Regulation Interpretation, Chevron Case, Judicial Respect
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