Research On Basic Issues Of Administrative Regulations

The administrative regulations are the ones formulated by theadministrative organs to instruct the peoples' activities, and the main methodsto administrate the economy and social affairs. For the non-specification to theobject, the duplication of the effect and the universality of the scope, theadministrative regulations play a vital role in the process of the administration.In recent years, lots of the administrative regulations give a great effect toenhance the development of the economy construction and some enterprises.But in the other hand, there are a lot of abnormal even illegal administrativeregulations that reduce the government's efficiency and harm the authorities ofthe government and handicap the process of the administrative advancement.The scholars both in the theoretical circle and the practice circle pay enoughattentions to the problems and controversies in the administrative regulations.But the problems in the administrative regulations are involved in the politics,the laws and the morals. To solve the problems, we must have a new survey onthe basis of the administrative regulations, which seem perfect. The thesisconsists of three parts.The first part is the present situation and the development tendency. Theauthor proposes the rationality and necessity of the concept of theadministrative regulations and analyzes the characters of the administrativeregulations. The author emphasizes "formulation through the legal procedure"is the element to the laws but not the administrative regulations. The thesisrefers the main issues existing in the administrative regulations, and points outthat the key to solve the problems is we should perfect the construction of therelated systems following the legal process. Especially the formulationprocedure of the administrative regulations should be fixed, and it is necessaryto establish the judicial examination systems suitable to the domesticsituations, not imitate the foreign examination systems. The thesis criticizesthe traditional theory of the "efficiency" with the theory of "social justice" inthe study of the public administration. Furthermore the author proposes therequests on the China's administrative regulations. The constitutor shouldtransform the ideas and response the public demands, not purchasing the needsof the administrative organizations. The formulation process of theadministrative regulations could show the interest demands through theinteractive communications and implement the maxim social efficiency. Theadministrative regulations should pay more attentions to the weak, legislate forthem. We also should define the rights and obligations of the legislator of theadministrative regulations and care the efficiency of the administrativeregulation.The second part is the analysis on the status and potency rank of theadministrative regulations. Generally we have the classification of theadministrative regulations with the formulated regulations and thesupplemented regulations;the formulated regulations have the legal essencefor containing the concrete rights and duties of the citizen;the characters ofthe supplemented regulations lies on the main part which determines the legalessence. At present in our country the administrative regulations with the legalessence can't achieve the status of the law. It is possible to recognize theadministrative regulations as the source of laws in the suitable conditions withthe development of the constitutionality. The thesis analyzes the status of theadministrative regulations in the management of administrative execution, theadministrative reconsideration and the administrative litigation. The thesisanalyzes the difficulties in determining the potency ranks of the administrativeregulations, and proposes five principles to solve the problems. First, theadministrative regulations formulated by the all rank of governments areinferior to the administrative laws and the administrative rules formulated bythe same unit. Second, among the administrative regulations and theadministrative rules, once one administrative organ is subjective to another, wemust obey the principle that the subordinate one is inferior to the superior onewithout consideration that the standard is the administrative regulations or theadministrative rules. Third, if there are the conflicts among the administrativeregulations formulated by the different ministries or commissions that one isnot subjective to another or the local regulations and local administrativeregulations, we must obey the arbitrations of the state council;if there aredifferent regulations formulated by the same department on the same issue, wemust obey the explanations or arbitrations of the department;if there areinconsistence between the local governments and the departments, we shouldreport and obey the arbitration of the co-superior organ. Fourth, if there areconflicts between the superior administrative regulations and the local codes,we apply the local code in the region and the administrative regulation is stillavailable in other regions. Fifth, commonly the subordinate obeys the superior.Basing on the five principles, we could determine the potency rank of theadministrative regulations correctly.The third part is the constitution and supervision of administrativeregulation. The emergence of constitutive authority of administrativeregulation is decided by urgency of the society. We must respect the existenceof multiplex interests in the constitution of administrative regulation and reachthe interests of right and authority a relatively balance. One of the manners toreach this kind of balance is to weaken the administrative force. Therefore, theauthor points out the theory of stipulating the constitution of administrativeregulation which means to constitute administrative regulation with the similarmanners of making a contract between the equal subjects, thus to reducefriction and improve the social efficiency of administrative regulation.Administrative regulation has to constitutive principles which are participatingprinciple and opening principle. For making sure the realization ofparticipating principle, the author advises to establish the system which meansthe administrative counterpart participate the application to the conditions ofthe constitution of administrative regulation. In allusion to the specific issues,the author carries on the solutions such as extending the proposal subjects ofthe constitution of administrative regulation. The problems existing in thesupervision of administrative regulation mainly are the negligence of forwardsupervision;the absence of afterward supervision, the hard to operating oflegislative supervision, the undependable administrative supervision, theweakness of juridical examination. Therefore, it is necessary to rebuild China'ssupervision operation of administrative regulation: strengthen and promote theforward supervision;create new mode of "legislative supervision adds tojuridical supervision". Let the court use its "power of first trial";NationPeople's Congress use its "supreme authority";through the combination of thetwo, under China's current organization of constitutional government, toestablish our system of juridical examination and exert the superiority ofadministrative supervision.