Investigation On Abstract Administrative Act In China's Administrative Law System

Nowadays, abstract administrative act has been becoming the indispensable instrument of government in every country along with incessant dilatation of executive power in neoteric and modern times. As a main function of executive authority, abstract administrative act almost involves in every aspect of the social life, exert deep influence upon social and demotic life and has non substitutable effect on state life. Whereas, the procedure of setting our country's system of abstract administrative act is not normative, which are undeniable. Supervision by law is also not consummate and the phenomena of breach of law, infringement of right is serious. After researching large volume of materials about this issue of China as well as western world, the author's studies start with the definition, classification, orientation , and legal characters and adopt synthetically comparative, inductive analyses, trying from the angle of rule of law, protecting legitimate rights and interests of administrative counterpart and supervision over administration, benefiting from correlative system and experience of advanced countries of common law system and continental law system, analyzing the actuality, demerit and cause of formation, to discuss and perfect the measures of supervision by law over abstract administrative act and bring forward author's idea about perfecting supervising system and the system of abstract administrative act. The Author argues that underlying cause for demerit of China's system of abstract administrative act is the current system which lacks the idea of protecting legitimate rights and interests of administrative counterpart. The radical character of contemporary rule of law is to protect the rights. At present, as the procedure of setting abstract administrative act has not been prescribed by law, democracy and publicity is seriously deficient, the delegation of law is wide, while the abstract administrative act is short of effective supervision, therefore legitimacy of abstract administrative act is questioned. In order to protect the legitimate rights and interests, the paper considers perfecting the system of abstract administrative act, and we must strengthen the supervision by congress, administrative body and judicial body. Firstly the paper suggests the constitution to prescribe the principle of delegation of congress should be explicit, intensifying the supervision by congress, establishing the system of reviewing of constitutionality; secondly from the perspective of constitution, we should pay more attention to the status of judicial authorities, to make the judicial authorities really independent, accordingly reinforce the supervision of administrative power by judicial power. Step by step we could enlarge the scope of judicial review, build up the remedial mechanism of illegal abstract administrative act. Thirdly the Administrative Procedure Act must be enacted as quickly as possible, to establish the standard procedure of abstract administrative act, intensify democracy and publicity. Finally, it is time to perfect the internal supervision system of administrative authority. The issue does not only has significance that perfection of abstract administrative act is to control administrative power and realize the balance between governmental power and people's rights, but it also is associated with the situation of our country and present status and realistic demand of judicial practice. As for the system of abstract administrative act, it is involved in the constitutional relation reconstruction between administrative power and judicial power, amending and perfecting correlative laws, thereby it is impossible to accomplish in an action, we must carry it out energetically and steadily, conceive and establish it scientifically and rationally, gradually perfect it by combining with the situation of China. Due to the limit of time and knowledge, some viewpoints of this article still sound superficial and partial, therefore the criticisms and instructions are sincerely welcomes by the author.