The Legitimacy Of The Administrative Permission

Traditionally, the scholars of Administrative law focused on the nature of rights and obligations under the administrative permission. However, there were few discussions to the definition of administration permission. Administrative Permission means that the individuals can be engaged in certain fields only by permissions of the government. The scope of administrative permission is a prerequisite issue. The "Administrative Permission Law" mainly focuses on the legality of the administrative permission setting with less attention for the legitimacy of the administrative permission. The legitimacy of the administrative permission includes its purpose and means. From the legislative and administrative views, the setting of administrative permission can be considered as a policy tool for regulation of private. Whether to set administrative permission or not, government shall first consider of public welfare, and the legitimacy. If the answer is negative, we should say no to the setting. Government's regulation means interference and supervision of private conduct but not just administrative permission. There are varieties of available policy tools to achieve the goals of supervision and intervention, such as the prohibition, the administrative permission, the information regulation, the standard setting and so on. Compared with other policy tools, the administrative permission is a severe intervention tool against the freedom of the individuals. The administrative permission should not only comply with the justification of means, but also follow the principle of proportionality. On the one hand, the policy instruments chosen by the government should be oriented on the purposes of public welfare. That is to say the public welfare is the aim of the government interventions. If not, it would be against the principle of suitability. On the other hand, with the tool nature, administrative permission is an important tool of government regulation. When considering the setting of administrative permission, the legislators and administrative authorities shall follow the principle of necessity. That means while accomplishing the purpose effectively, the government should give priority to the application of other less severe tools. Even if it is necessary to use the administrative permission, the legislators and administrative authorities should also carry through Cost-benefit analysis for the setting of administrative permission. Only if the cost of the administrative permission is lower than its revenue, the government may choose the administrative permission. Otherwise, it would be in violation of the principle of proportionality.