Administrative Legislation Cost-benefit Analysis

With the expansion of the connotation and denotation of executive power, administrative legislation has become one of the most important kinds of legal norms regulating social relationships for a country of democracy and rule of law. Its ability to achieve profit-maximization from formulation to implementation to some extent reflects its legitimacy from the perspective of'to be'and'ought to be', and promotes fairness, justice, social order and other basic values. Western countries, for example, the United States, have been exploring the cost-benefit analysis of administrative legislation since 1970s and have become mature both in theory and practice. How to get rid of the drawbacks and achieve profit-maximization becomes a significant problem for China's administrative legislation. This paper discusses the basic theory of the cost-benefit analysis of administrative legislation by starting with the basic concepts of administrative legislation, such as costs, benefits, administrative legislation costs and administrative legislation benefits. From this starting point, this paper then describes the practices of the cost-benefit analysis of administrative legislation in the United States and South Korea, reviews its development and features in China, and on the basis of the discussion of the value balance of the cost-benefit analysis of administrative legislation in practice, analyzes China's administrative legislation and the cost-benefit analysis of it status quo, and then based on taking full advantage of lessons of the United States and other western countries, this paper puts forward some proposals to accomplish the goal of profit-maximization of administrative legislation, such as strengthen the research and institution construction, and controlling of the administrative intervention in civil society and maintaining a moderate number of administrative legislation.Besides introduction and conclusion, this paper is divided into three chapters, as follows:Chapter 1 studies some basic concepts of the cost-benefit analysis of administrative legislation. This part introduces the definition of the cost-benefit analysis of administrative legislation at the beginning, and then discusses its definition from two levels in order to fully explain it. First, surveys the connotations and compositions of the costs and benefits of administrative legislation, especially some core concepts such as administrative legislation, costs, benefits, administrative legislation costs and administrative legislation benefits. Then on the basis of the goal of law and economics this paper declares that the positive increase of the benefits of administrative legislation is desired by the subject of administrative legislation, and for enhancing the benefits of administrative legislation and achieving the Kaldor-Hicks efficiency, according to the formula of the benefits of administrative legislation, we should not only consider the benefits (production) of administrative legislation but also the costs (investment).We should not only consider the number of the costs of administrative legislation but also the structure and distribution while considering the costs problem. It is only when the subject of administrative legislation know how to strike the balance between the costs and the benefits he can get maximized profits by optimal costs. Second, discusses the composition of the costs and benefits of administrative legislation combined with the classification of the costs and benefits of administrative legislation. On one side, the costs of administrative legislation can be classified in to two types according to the relationship between the costs and the payer, the one is the costs of making administrative legislation, the other is the social costs of administrative legislation. The costs of administrative legislation also can be divided in to the opportunity costs and marginal costs, and the former is mainly about whether the administrative bodies choose to legislate by administrative approach and how to choose exactly among a good number of legislative acts. On the other side, the benefits of administrative legislation can be classified into benefits of the internal quality of administrative legislation and external social benefits it brings about according to the outcome of the making and applying of administrative legislation. Then this paper summarizes five quality standards and the content of external social benefits based on the analysis of different views among academic circles.Chapter 2 discusses the practice of the cost-benefit analysis of administrative legislation. This part starts with a survey of the practice of the cost-benefit analysis of administrative legislation, and then describes China's status quo combined with the practice of the United States and other countries. Firs, uses the formation and development of the cost-benefit analysis of administrative legislation in the United States as a clue, surveys the practice of the United States and South Korea as the representatives for modern western countries of democracy and rule of law。Meantime reviews China's development of the cost-benefit analysis of administrative legislation, then summarizes five features of China's practice in rational knowledge, originated time and level of development, institution construction and legislation, focuses on content, and special analysis methods through comparative analysis. Second, discusses the problem of value balance of the cost-benefit analysis of administrative legislation combined with the practice of the United States and South Korea, points out that the cost-benefit analysis of administrative legislation has both the value of efficiency and justice, so we should absorb and draw lessons from western institution ethnics to balance these two kinds of values. Finally, on the ground of the status quo of China's administrative legislation, this paper holds that China's administrative legislation lacks the value of efficiency, including the low utilization ratio of cost-benefit analysis, the lack of efficiency awareness, and the institution is imperfect. In a word, China's administrative legislation has serious drawbacks:high costs and low returns.Chapter 3 deals with the approach of maximizing profits of China's administrative legislation. Since the above has given a sound foundation of the theory and practice of the cost-benefit analysis of administrative legislation, this part devotes to discussing how to improve China's administrative legislation and achieve maximum efficiency. This paper puts forward five countermeasures as follows:First, in view of the research level of Chinese law and economics and related disciplines lags behind many other countries and to some extent hindered the research and application cost-benefit analysis in administrative legislation, this paper suggests to learn from common law countries, strengthen mathematics and modern economics courses for legal education to lay the foundation for the development of law and economics and other related disciplines. In the meantime, we should regulate and limit the application of the cost-benefit analysis of administrative legislation by national legislation, such as law or administrative regulation. Second, takes control of the intervention to civil society by administrative legislation. Learn from the United States, before initiating administrative legislation proceedings, the legislator should analyze the possible costs and benefits of specific legislation, and reports it to the financial sector of the same level for efficiency review, then sends it to related legal sector of same level decides whether to initiate legislation plan for necessity and feasibility review. Third, maintains a moderate number of administrative legislation. We should handle the relationship between the quantity and quality of legislation properly according to the opportunity costs of administrative legislation. Practically, government departments and cities whom have legislative power should revise unsuitable provisions every 3 years with the different types of treatment required, i.e. revision, rescinding. The State Council Legislative Affairs Office should make standards of revising to guide this work. New legislation should under strict control. Meanwhile, in light of the type of legislator is too many, we should abolish the legislative power of the bigger cities besides the special economic area by modifying Law of the People's Republic of China on Legislation, to centralize the legislative power of the administration and maintain uniform legal system of the state. Fourth, we should dispose the resources of administrative legislation reasonably. The point is that we should strength the consciousness of resources efficiency through four aspects:the power division of the legislative power of the administration between central and local, more investment on administrative legislation, reforming the disposition institution of legislation resources, and saving legislation resources in every link. Fifth, reconstructs the procedures of administrative legislation to ensure that it can be configured to be a scientific platforms and carriers of the disposition of legislation resources. We should promote this work from five aspects mainly: preliminary approval, professional project outsourcing, legislation hearing, post-enactment evaluation, and supervision.