On Rule Of Law Of Administrative Guidance

With the development of modern market-oriented economy and democratic politics, administrative guidance has been the center of the administration of modern government instead of administrative order. Modern society upholds rule of law, so administrative guidance must follow the track of law. This paper makes a systematic exposition of this problem in the following aspects: the body and content and basis of administrative guidance must be lawful; we must pay attention to its procedural; we must standardize its legal responsibility and relief system. The paper is divided into three parts. First part is the summary of administrative guidance. Administrative guidance is that administrative subject make guidance legal rule, policy ,plan regulatory file and adopt advice , propose , rewarding etc, in order to realize certain administrative goal, impel administrative relative people to cooperate. The main body of administrative guidance to be to enjoy the national executive power, exercise the executive power with one's own name, bear the organization of legal responsibility .The purpose of administrative guidance is to realize the government's administrative goal. The way of the administrative guidance is flexible , various. The administrative guidance can't surmount the legal principle and legal spirit. It is a kind of non-mandatory administrative behavior. The "balanced theory"on the administrative law: it should be the equality in status to administrative subject and administrative object, consult and cooperate each other. Proportion principle can inspire our thinking . Proportion principle require means of administrative behavior can not be too severe , too harsh, should reflect "intervening minimumly". As a kind of new-type government's behavior, there are deep economic, political,social origins in the production that the administrative guidance. The development of modern market economy is pregnant with the production of the administrative guidance; administrative guidance is the result that modern administrative development; it is an inevitable demand for a modern administrative benefit principle to administrative guidance. Second part is current situation , question of the administrative guidance in our country .The administrative guidance are paid attention to by people our country gradually now, use a lot of fields in administration, make the effect. But some questions exist. Firstly, lack information interchange between administrative subject and relative person. Secondly, a large number of administrative guidance is dissimilated as the administrative decree. Thirdly, the course of administrative guidance lack the transparency . Fourthly, lack the protection to the third party's interests. Fifthly, lack the tied mechanism of administrative guidance .The main reason is that the misunderstanding and superstition to legal compulsive means; the sequelae of the traditional administrative interference mode; the foundation governed by law of the administration is weak . The third part is administrative guidance and ruling by law. The administrative guidance must be made to guide within its power range. The content of administrative guidance must be legal .The theoretical foundations of relief and responsibility of the administrative guides. Firstly, national nature and demand for the principle governed by law. Secondly, the nature that the administration instructs has determined that should receive the restraint of the principle governed by law of the administrative guidance. Thirdly, the demand of "reliance protect"principle. The relief system of administrative guidance is bitter feeling deal with system, administrative action system, administrative compensation system . The fourth part is the suggestion to administrative guidance and rules by law. It is a system engineering that the administrative guides. It needs to take...