The Study Of Executive Legislative's Avoidance System

The emergence of executive legislative power is the product of legislative expansion of executive power, although legal scholars believe that executive legislation is a had to be tolerated for the scourge, it is an unfortunate and inevitable destruction for the separation of powers, but executive legislation is due to its quick and professional legal system plays an irreplaceable role in the construction process of rule of law in our country. Executive legislation procedural randomness and legislative departmentalization and localization generated in the process of legislation consummate executive legislative procedure for increasing demands, administrative law scholars with timely introduced of the executive legislative avoidance system to China. About avoidance system in executive legislation whether did in China on fitness, it had the opposite problems of two views: the opposition, represented by professor Yang Jianshun think that executive legislative avoidance system in China have neither legitimacy foundation nor rationality foundation, and will lead to increasing legislative cost and administrative organs had to exercise of executive legislation negatively; Wang Quansheng, Lou Hufeng, Hu Jun and other scholars analyzed from theoretical basis, institutional meanings, practical feasibility aspects, thought that the establishment of executive legislative avoidance system can standardize executive legislative procedure and security executive legislation justice.The author firstly by Professor Yang Jianshun on the "'government legislation avoidance'unfavorable promotion ", an article opposes that establishing executive legislative avoidance system in our country, and the author by-the _opposition to prove the logic starting point of establishment of our executive legislative avoidance system. Based on the analysis of the concept, determines the executive legislative concepts for the executive legislative avoidance system, and properties of executive legislation, defined as a kind of abstract administrative action and the legislative action with the dependency, on that basis, making the analysis of executive legislative avoidance system. The establishment of a system has its theoretical basis, and through analysis on the foreign established executive legislative avoidance system and China's other avoidance system, we can know that Britain's "natural justice principle" and America's "legitimate legal process principle" is the theory foundation of the establishment of executive legislative avoidance system. Not only has the theoretical basis, the establishment of executive legislative avoidance system has more realistic significance to our country: executive legislative avoidance system is the democratic legislation and scientific legislative requirements; and it is good for overcoming the rent-seeking phenomenon of executive legislation process; and in favor of reducing operation cost of lawmaking files.Although executive legislative avoidance system has benefits, the establishment in China will inevitably be affected, the first is the impact on the idea, the traditional Chinese official thinking resist establishing executive legislative avoidance system, once again stakeholders of the executive legislation activities would block the realization of executive legislation in China. In spite of the difficulties, but the establishment of executive legislative avoidance system is a historical necessity, our country should be perfect from legislation, applicable scope, the matter mentioned and operation procedure of executive legislative avoidance system, such as proposed procedures, review procedures, decided procedures, etc. thereby establishing a suitable for executive legislative avoidance system of our country.