Research On The Basic Theory Of Statutory Establishment Of Administrative Institutions

The administrative organization law belongs to the internal administrative law,which has not been well developed in the whole administrative law,and many basic theoretical propositions,including the legalization of the establishment of administrative agencies,have not been well solved.Although the legalization of the establishment of administrative agencies has become the basic policy requirement of the CPC Central Committee and the State Council,there are still many specific issues to be studied on how to realize legalization in the process of establishing administrative agencies.These issues constitute the logical framework and the basic theme of this paper,including how to comprehend the legalization of the establishment of administrative agencies,why should we realize legalization in the process of establishing administrative agencies,and how to judge the legal scope,rank and degree of the legalization of the establishment of administrative agencies.In addition to the introduction,this article is divided into five parts:The first chapter mainly analyzes the object of the legalization of the establishment of administrative agencies,that is to say,how to comprehend the legalization of the establishment of administrative agencies.The paper analyzes the establishment of administrative agencies from two perspectives: static and dynamic.The former mainly classifies the administrative agencies according to different standards from the perspective of subject,while the latter defines the scope of setting from the point of view of behavior.The so-called establishment of administrative agencies refers to a series of administrative organizational acts of people's governments at all levels and their working departments,and internal agencies,such as the establishment,revocation,consolidation,change of specifications,and change of name,etc.The legalization of the establishment of administrative agencies comes from the traditional legal reservation,institutional legal reservation,administrative organization legalism and so on,but it is different from it,which brings the law and regulation into the scope of legalization.The second chapter mainly analyzes the necessity of the legalization of the establishment of the administrative agencies.As a whole,the establishment of administrative agencies in China has experienced four stages: germination,start-up,development and reform.There are many theoretical problems in the process of executive reorganization.The reason why the establishment of administrative agencies should be legalized is that these realistic problems existing in the process of establishing administrative agencies in china need to be solved by legalization,which is the effective way to solve the problems in the process of executive reorganization.In addition,the theoretical reasons are mainly based on the development of the theory of legal reservation,the promotion of the role of administrative organization norms,the requirements of objective order of values of basic rights,the promotion of financial budget theory,and the general characteristics of legal norms.The third chapter analyzes the extraterritorial experience of the legalization of the establishment of administrative agencies.This paper focuses on the establishment of administrative agencies in the United States of America,Germany,Japan and Taiwan analyzes the content of the regulations.There are a lot of experiences for us to learn,for example,regulating the process of the establishment of administrative agencies through the budget,the regulations to be formulated should be as detailed as possible,the whole process of the establishment of administrative agencies is dominated by the legislative power,establishing the dynamic control mechanism,the number of administrative agencies is limited in a quantitative range.The fourth chapter mainly analyzes the legal scope of the establishment of administrative agencies,that is to say,some agencies need the legal basis in the process of establishment,while the others do not need the legal basis.The theory of significance plays an important role in the judgment of the legal scope of administrative agencies.Depending on the scope of administrative responsibility to be carried out by the administrative agencies,all of the administrative agencies can be divided into four types: the people's governments agencies,the operational agencies of the government,the internal agencies of the government and its operational agencies,and the offices of the government and its operational agencies.The Internalagencies can be subdivided into five types.According to the criterion of whether the establishment of the administrative agency has an impact on the protection of the rights of the administrative counterpart,the whole set-up behaviors of the operational administrative agencies shall be legalized when judging the scope of the legalization of the establishment of administrative agencies,while the establishment of the other administrative agencies should be excluded from the legal scope.The fifth chapter mainly analyzes the legal rank and degree of the legalization of the establishment of administrative agencies.The determination of the legal rank of the administrative agencies shall refer to the relevant provisions in Law of The People's Republic Of China on Administrative Penalty,and we should analyze separately the matters within the legal scope of the administrative agency.Attempting to establish a multi-level legal norm system in the field of the administrative organization law.On the judgment of the degree of legality,this paper thinks that the legalization of the establishment of administrative agencies means that the process of establishing administrative agencies needs to be legalized as far as possible.Thus,the regulatory norms in the field of the establishment of administrative agencies are divided into procedural elements and other elements.The former mainly includes proposal procedure,program preparation procedure,audit procedure,decision procedure,filing procedure,supervision procedure and so on.The latter mainly refers to the elements of rules,structures and forms set up by the administrative agencies.The establishment of standard and single law norms,the clarification of procedural elements,and the digital expression can enhance the legal degree of the establishment of administrative agencies.