Study On The Setting Of Administrative Permission By The Administrative Rules Of The Provincial Government

Administrative permission enactment right includes permission enactment right of law, permission enactment right of administrative laws and regulations, permission enactment right of decision of the State Council, permission enactment right of local laws and regulations, permission enactment right of administrative rules. As to whether or not to give the provincial government permission enactment right, there are two different points of view in China. The denial hold that administrative rules shall have no permission enactment right, while The positive theory, on the contrary, completely approves administrative rules shall have permission enactment right. Given the situations of our country and balancing differing opinions, The legislature give the provincial government the temporary permission enactment right and other level government have no permission enactment right, which is mainly stipulated on Article 15 of Administrative Permission Law, obviously one breakthrough in legislation angle. Giving the provincial government the administratively permission enactment right is based on the actual conditions of our country and decided by the lagging of Law. That's why it's necessary to give the enactment power to the provincial government.China's Administrative Permission Law exist too many defects in scope of permission matters, the regulations of necessity terms and temporary provisions, and the procedural regulations. According to the statistics of the established situations of the provincial government in Guizhou and Shanghai, I found a fact that the provincial government set administrative permission in many fields, such as civil administration, public security administration, medicine and health, culture, resources, land, urban construction and real estate, environmental protection, transportation, market access, and so on. Of all these fields, public security, land, urban construction, real estate and market access are overwhelmingly proportioned. The administrative permission plays an important role in the local social and economical development. On the other hand, inappropriately setting administrative permission also has some negative effects on the local social and economical development. The mainly negative effect is the consequence of breaking the law by the provincial government in administrative licensing, such as against the law provisions on permission items, against the temporary provisions and against higher rank laws during the setting process. Countering the defects of Administrative Permission Law and the problems of legal practice, the administrative permission setting matters can be perfected by enacting specific law or legislative interpretation to transform from Article 13 --the "soft clause" to "prohibitive provision", by bettering links up between administrative rules and local laws and regulations, by establishing and improving mandatory cost-effect evaluation,hearing procedure,expert consulting argumentation procedure, evaluation mechanism on administrative permission and so on, by building cancellation and request mechanism of interested party, and meanwhile by improving the supervision system of legislature, plus using some other means to address the issues.