On Administrative Rationality And It's Suitability In Enforcing The Law

In the history of mankind, there are two kinds of state policies: Ruling by men and ruling by law, ruled t by men has already been proved impractical, only by ruling by law can make the mankind get rid of the ignorance, keep the sustainable and healthy development of the society, only ruling by law can realize and ensure people's freedom and development in an all-round way, without ruling by law , mankind will be no beautiful tomorrow. So, building a beautiful society governed by law and building a clean and high-efficient government governed by law, has been the human pursuit all the time . No matter the separation of powers of the capitalist country, or socialist poeple's congress system, have reflected mankind's exploration of the way governed by law. However, in the course of pursuing the road governed by law, the mankind has paid a lot of lessons written in blood, the way governed by law is full of frustrations and difficult. Aristotle provides the deep meaning governed by law for the first time: the law established is made well and comformed generally by everybody; In view of the above, we can draw a conclusion : Ruling by law is the good method in the general managing. But on the road governed by law , there is only general managing but not managing by good laws , it is actually ruling by men not " rule by law ", because the evil law is illegal, it will only bring to mankind unfortunate. During the World War II, Germany has not only brought the great calamity to world under the circumstances that ruled by the fascist's law, but also make the whole nationality of Deutsche in the very grave disaster too. Truly , good and beauty have been cut with blood under sharp sword of law, false, ugly and bad have been governed by the authority of law . the good it brings to mankind is very few, only in accordance with good law could bring good news to mankind . declaration of Delhi which was passed in Delhi of India in 1959, have put forward three major principles governed by law: The legislature makes the good method (safeguards human rights ), the administration rules by law (prevent the executive power from abusing and making the government maintain the legal order effectively), judicial independence and lawyer freedom. In the three principles governed by law, to make the good laws is the prerequisite governed by law, the administration rules by law is a core governed by law, judicial independence and lawyer freedom are the guarantee governed by law , the three is indispensable. The essence of the good laws is the rationality of the legislation, the essence governed by law of the administration is the administrative rationality, administrative rationality is the most effective means to control the executive power , especially to contronl Judging amount right freely of the administration, and it is the advanced shape of administrative legitimacy. Legitimacy controlled is a kind of machinery , formalism, administrative rationality is the a kind of essence doctrine .From the form doctrine to the essence doctrine governed by law , is the result that mankind seeking the road constantly governed by law. Our country goes through all kinds of hardships and difficulties in seeking the road governed by law too. In the early days of foundation, our government begun to pay attention to the legal construction, but a good time never last long, on later stage of the fifties of the 20th century, because the weakness of the legal construction and system construction was imperfect, our government has denied the law cultural heritage that the Kuomintang government left in an all-round way, have abolish six laws pandects of the Kuomintang, cut off the succession of legal culture artificially, make the law mansion of our country set up without foundation . In idea, people do not pay attention to the law , despise the law, the legal nihilism prevails, democracy and legal system are trampled on . Tten-year catastrophe, has brought the very grave disaster and painful lesson to country and the people. After the Third Plenary Session of the 11th Party Central Committee, our country begun to bring order out of chaos, the legal construction has begun the new chapter, our country begins to be learn the outstanding civilization achievement of mankind's legal culture from western developed country and drawing lessons constantly, have left the deep footprint on the road of ruling by law. Since the Third Plenary Session of the Eleventh Central committee of the CPC (1978), socialist democracy of our country and legal construction have made remarkable achievements. The 15th National Congress of the Communist Party of China establishes the basic strategy of running the country according to law , building the socialist country governed by law, wrote it into the constitution in Second Session of the Ninth National People's Congress in 1999. As important component that run the country according to law. It make obvious progress to administer the state according to law, ability and level of acting in accordance with the law are improving constantly. 16 host of of party develop socialist democratic politics , build socialist political civilization, as one of the important goals of well-off society, and require clearly to "strengthen the supervision of enforcing the law , advance the administration."compare with improving the socialist market economy system and building socialist political civilization, administration ruled by law is not enough. For example, the failure to rule only the law, the failure to strict in enforcing the law , refrains from punishing law-breakers occasionally .etc. To administrate supervision and restraint mechanism of behavior, some break the law or improper administrative behavior do not get prompt , effective prevention or correct, the interests of the relative people of administration are damaged and can not get relieving in time; Some administrative organ staff member administrative idea still relatively thin, administrative ability and competence remain to improve further. These questions have damaged the people's benefits and the government's images to a certain extent, have hindered the development of economics and society in an all-round way. Solving these problems, must advance the administration in an all-round way , build the government governed by law. In April of 2004, the State Council releases"advancing and administering the state according to law to implement the outline in an all-round way ", which will propose building up a government governed by law in about ten years, proposed the basic demand of the administration according to law: Legal administration; Rational administration; The procedure is proper; High-efficient and convenient for people; Honest; Power and responsibility is unified . Here, the reasonable administration is risen to an unprecedented height, a basic requirement that reasonable administration becomes the administration, main reason based on the following aspects: First, the administration judges right of measuring freely exists extensively. Compared with traditional administration already there are very heavy changes in the modern administration, the traditional administrative range mainly involves public security , national defence , tax and diplomacy , the administrative function is mainly for realizing and ensuring personal freedom and right, the government made a passive keeping watch at night person role,the government exercises the mandate clearly with the law of power ;yet the modern administrative marrow lies in the judging amount, the field that the modern administration involving is expanding constantly, the administrative norm can't contain all fields , the professional lines and technology of administration are being strengthened constantly, the administrative way is changed into meeting the needs of social development and technological progress from the original passivism administration, the government serves " service administration " of the society as much as possible , this makes more and more administrative affairs need administrative organ according to the needs of objective reality and one's own flexible treatment of judgement, this make administration measure existence of right become essential to cut out freely. As one power, if person who cut out right restrain from freely to administration, must cause the abuse of the executive power , damaging the legitimate rights and interests of the relative people of the administration, then, administrative rationality arises at the historic moment. Second, Defect of the legitimacy principle. Legitimacy principle checking administration is measure enforcement of right accord with the clear regulation of the laws and regulations to cut out freely mainly, but only this is not enough. A basic principle as the administrative law of legitimacy principle is weak for administration to judge the control which measures right freely, the judging amount right freely of the administration is actually a kind of legal power , enforcement of this kind of power is legal , legitimacy principle can guarantee administration measure enforcement of right already legal to cut out freely. The administrative rationality principles and administrative legitimacy principle all involve the legal problem in essence, legitimacy principle cut out enforcement of quantity to deny coincidence method pieces of regulation . While the administrative rationality principles should be concerne the principle , purpose , spirit of the law and original idea of the law to deny the coincidence method ,etc. The legitimacy principle is one shallow machinery of level legal, not meet administration need , right of development of cutting out etc. yet the administrative rationality principle has remedied this defect , it is deeper legal problem. Third,meet the need of the one governed by law. It runs the country according to law to be to control the country according to constitution and law, the law occupies the main status in controlling the country, having supreme authorities, anyone must act in accordance with the law . The administration is the core of running the country according to law, and an important foundation of promoting the general plan of running a country in accordance with the law to realize, is the key point whether the general plan of running a country in accordance with the law could be carried out smoothly. It must take strict precautions against the abuse of the executive power , stop the erosion to judicial power and legislative power of executive power to realize the administration. Contemporary, the executive power can't be scarce most, and the power to need to control most.Executive power's control except legitimacy principle, rationality principle essential too. we need administrative rationality principle control the enforcement of the executive power, or it must cause the administrative organ to carry on power to seek and rent under the covering and protecting of the legitimacy veil , cause to grow corruption , damage authority of government , cause between people and legal disappearance of faith, damage the realization governed by law finally. Forth, WTO regular requirement. WTO rule was participated in and made by every member's square government, the main target which restrains is an administrative organ and administrative behavior, especially theadministration legislates and makes policy, in a sense, WTO rule belongs to the international administrative law category. WTO transparency principle has direct influence, including international transparent and domestic transparent principle to disclose the system on the administration of our country. Require in free internationally and transparently the regulation , policy of every member state are open , transparent to other members, set up an open , transparent legal system and consultation mechanism to guarantee the justice.It mean transparently member's square trade regulation , policy are open , transparent on its inside at home, including formulation process is open and transparent. It must use government's behavior of principle structure of administrative rationality to realize requirement of principles of WTO transparency, set up an open information announcing mechanism. Fifth , characteristic of executive power . The essence of administrative power is that a kind of value is controlled and controlled with resources, the persons who can bring material benefits or spiritual interests to people through controlling, can have lasted transmutation in the course of exercising power not administrative ,if right not common the private with, go beyond one's commission and power rent seeking, thus it happen getting wanton , corruption of power to derive, if incorrect control to go on, must cause the corruption , absolute power causes the absolute corruption. Administrative power has expanding nature, all people with power are all apt to abuse power , until meet the place with demarcation line. Administrative power have getting one-way characteristic, power subject function, power of object and power object unequal to reaction, power of subject correctly. It is mandatory for executive power to have, administrative subject can consider voluntary , equality , equivalence principle such as being paid while exercising administrative power, the relative people of the administration must obey . The characteristic of power indicates, if does not restrain administrative power , extremely apt to move towards individual's making one's own decisions without consulting with others , arbitrariness, jeopardize citizen's legitimate rights and interests. For a long time, compared with legislative power, judicial power the executive power, play an even more important role in social life, the political position is higher than all, political strength can be expanded in all life fields, from affect by executive power all without exception " from cradle to grave ". Do not divide into suppressing and erosion that the executive power sets from the ancient executive power and judicial power against the right and judicial power after founding the state, the executive power has been occupying the most important position all the time in the power structure of China. The deformity state of this kind of state power, make people pay homage to the executive power, the ones that cause to one's own legitimate rights and interests are given up automatically, so, must control the evil of the executive power with the administrative rationality theory , make the executive power really become and make profit for the people power of benefit. Just because of this, this thesis attempts to analyze the rational administration, it measure to administrative concept , development , theoretical foundation , administrative principle and administration of rationality of rationality rationality of right control and describe to cut out freely, point out administrative rationality is a view governed by law of a kind of essence doctrine, administrative organ and his staff member must follow the rationality principle at exercising executive power , especially administration right of cutting out etc. freely, and control the judging amount right freely of the administration through legislating , enforcing the law , the administration of justice and the society control etc. the rationality mechanism, prevent fromadministration person who cut out right abuse freely , guarantee administrative organ legal , reasonable administration, thus in order to build up a government governed by law , ensure human rights and promote people's overall development to offer the help in theory .