On The Characteristics And Legal Control Of Administrative Guidance

There are four parts in the paper: first, the cause and significance of administrative guidance; second, the characteristics of administrative guidance; third, the practice of administrative guidance in China and problems; fourth, the legal control of administrative guidance. The first part is about the cause and significance of administrative guidance. The paper mainly focuses on the cause of administrative guidance, and the significance of its practice in the present situation. The paper first briefly introduces the development of administrative guidance, and through comparing the Japanese economy before and after the practice of administrative guidance with that of America, shows the important role of administrative guidance in impelling the development of market economy. Then the paper expounds the necessity of the study of administrative guidance, and shows the important position of administrative guidance in the study of the administrative law. As a country that is transferring to market economy, China has the necessity to reinforce its administrative guidance in the economy, in the executive administration, and in aspects such as pushing the transferring of the functions of the government.The second part is about the characteristics of administrative guidance. As an executive action, what is its characteristics on earth? The paper sets up its own point through stating the present theory of the administrative law, comparing different views and refuting other's point: firstly, administrative guidance is fact action; secondly, it is non-compulsive fact action; thirdly, it is non-compulsive fact action with power. And the paper mentions the problem of controlling the administrative guidance. The third part is about the present practice of administrative guidance in China and problems. There are three aspects in this part. The first aspect is about its practice, which mainly introduces the rules in this aspect after the 3rd Meeting of 11th CCP Conference. The second aspect is about the existing problems in administrative guidance. There are five problems from the view of procedure criterion: first problem is that the information communication block is too big, and the space of mutual acceptability between the people and the government is too small; second problem is that the administrative guidance is changed to administrative order; the third problem is about lacking of the procedure protection; the fourth problem is that the space for freely judge is too large, which makes administrative legalization hollow; the fifth problem is that the transparency of the administrative guidance is not enough, and sometimes "the dark case operation" takes place and causes the corruption. From the view of responsibility and relief, the way to trace the responsibility of the illegal guidance and to seek the relief is too less. The third aspect is about the reasons to the above problems, which are mainly sum up into two aspects: Firstly, there is lack of the reasonable recognition to the administrative guidance. There still exists the situation of negating the administrative guidance and lacking of the theoretical study of administrative guidance. Secondly, the degree of legalization of administrative guidance is low. The paper introduces the problems existing in the aspects of statute law, operation and main body qualification, which need farther effective and matching measures to standardize, systemize and legalize the administrative guidance. And the paper presents the necessity of controlling the administrative guidance.The fourth part is about the legal control of administrative guidance. There are five aspects in this part. The first aspect is to establish the five principles of administrative guidance: legality principle, rationality principle, purpose principle, democracy principle, equality and transparency principle. The second aspect is about the entity law control on the administrative guidance. The paper firstly definitudes that there should have law criterion in Chinese administrative guidance, th...