Research On The Problem Of Power In Professional Organizations

The professional organization, as a kind of social intermediate organizations, has undertaken some administrative power of public affaires that the government shifts out, and its role in social life is expanded day by day. But the one that contrasted sharply with the professional organization grows vigorously in practice is, the study on the system of the professional organization is still at the beginning stage in theory. Even the behavior that the professional organization executes the public administrative power is still excluded from the scope of accepting cases of administrative litigation. Such a current situation, not only is unfavorable for professional organizations to develop its fully role, but also has disadvantage in maintenance the legal rights and interests of social member. From the point of view of the basic position of safeguarding human rights, we really have a necessity with perfect theory. In this paper the author divides four parts altogether to discuss about the question.The first chapter is about the overview of professional organizations.As for the meaning of professional organizations, different countries have different explanations. The domestic jurists generally believe: The professional organization means that is a kind of folk and non-profit-making public organization organized by legal person, other organization or citizen and made up on the voluntary foundation. There are two kinds of main forms of the professional organization: professional association and employer's association. The former refers to the group composed of enterprises engaged in the same trade production or management; the latter refers to the group made up of personnel engaged in the same job. Professional organizations have sixmajor characteristics: being of the same trade, non-profit-making, public beneficial, enjoying the public power, intermediary, and autonomous. The necessity that the professional organization exists lies in: First, the need of modern public management; Second, the need of improving the efficiency of management; Third, the need of the democratic participation and citizen's autonomy; Fourth, the need of development in pluralism of social interests; Fifth, the need of controlling the executive power effectively.The second chapter is about the source of the power of professional organizations.Professional organizations and government have both undertaken the function of managing trade public affairs, but because of the difference of organization nature, there must be certain differences between the two on the power source while managing. For government, the power of public management is necessary to be from authority by law. But the professional organization has organization nature different from government. It doesn't belong to state organ components, and does not receive the norm or adjustment of the rules of organization of government office either. On the contrary, it is a kind of public organization with autonomy and non-country nature. Then where its management power comes? Some scholars think the public power that the professional organization organized is not obtained by itself, but stems from the awarding of the country; other scholars think the power that the professional organization has evolved from the internal and stems from the unanimous agreement of its members, not from the external body entrusted to the professional organizations. I think, the above mentioned viewpoints are too absolute, in fact, when the professional organizations is managing trade affairs,the power it enjoyed includes the one that has established and awarded through the state law, and also includes the one that agree to unanimously and take shape through members. The power that the professional organization of our country stems from two following ways mainly: First, got through the internal agreement. Second, authorized by law and entrusted by government. But these two kinds of power are not simple relations of standing side by side; there is intricate connection existing between them. We should pay attention to three questions while it is analyzed the power source of the professional organization: First of all, some power of the professional organization will not be executed unless authorized by law or entrusted by government; Secondly, only according to the law or the government entrusts, the power obtained can be an adjustment of the administrative law. The agreement power of the professional organization is a kind of purely internal power, it does not receive the adjustment of the administrative law; Finally, some power obtained by the internal agreement, that can obtain external legal effect by approving through the law or the government confirming, should receive the adjustment of the administrative law.The third chapter is about the executing the power of the professional organizations.Because of the difference of sources of power, the executing of the professional organization's power can be divided into two kinds correspondingly: First, to obtain enforcement of power through the internal agreement, mainly reflecting in the mutual course between the professional organization and its member. It can roughly be divided into two kinds: service action and making internal rules behaviors. As a group organization,professional organization must have natural instincts that provide service to its member, the behavior of the professional organization can all be interpreted as serving from a broad sense, but the service of this paper refers to the professional organization offering a certain activity that helps to its member with one's own special knowledge, technology, etc. A kind of most general way that the professional organization takes while managing trade affairs is to make the internal rules, including autonomy rules, codes of ethic of job and sector standards, criterion mainly. Standardizing and restraining the behavior of social members through these regulatory files safeguard the good trade order. Second, the professional organization obtains the power authorized by law and government. This course can be divided into two kinds of situations: firstly, the professional organization obtained the administrative power authorized by law and entrusted by government, and the administrative power is originally belonged to the administrative organ, namely the professional organizations executing the administrative power; secondly, another kind of power is approved through law form confirm belonging to the professional organization which the autonomy enjoyed originally.The fourth chapter is about the restriction on the power of professional organizations.The professional organization has occupied more and more important position in social life, and begins to play an important role in the enormous function that can't be substituted too. With the expansion day by day of its power, the professional organization impacts on social member's rights and interests to expand progressively too, so, we must study and pay attention to restricting the power that the trade organize further. First, restriction of powerobtained through the internal agreement. It is the restriction of the servicing action at first. As to the servicing action that the professional organization has, because this kind of behavior happens among equal subjects, the professional organization executes the power not following the directing coercive strength and dominating strength of the country, professional organization and its internal member can bring the civil action to the people's court in accordance with the private regulation while disputing; Secondly, it is to the restriction which makes the internal regular behavior, this task relies on the government to realize through two following ways mainly: First, through system of putting on record, government checks professional etiquette whether violate relevant law, and decides whether allow the professional organization to be found; Second, restriction on power authorized by law and entrusted by government. To the restriction of the professional organization executing the public management power, there is not any regulation in the law of our country at present, mainly affected by "special power relation " theory. So, the author has carried on brief introduction to "special power relation " theory. With the revision of the relation theory of special power, some behavior excluded from scope of accepting cases of administrative litigation strictly, has gradually be included in the administration of justice and examined. So, although the relation between the professional organization and its member is a kind of special power, fundamental transition that has taken place, establishes the theoretical foundation of seeking for trade member relief of administrative litigation. Consulting with the way of doing between the civil law system and the common law system, two routes can be chosen: First, drawing lessons from the system of France, introduce concept of people of public law, we should set...