The Construction Of Our Country's Modern Mechanism Of Administrative Law

The mechanism of administrative law refers to the organic process and principle which adjusts the relation between power(right) and duty under the direction of the admimstrative law theoretical basis and runs through the administrative law system and administrative action. Along with the development of our society, economy and the theory of administrative law, the traditional one-way restricting mechanism based on the administrative subject has not adapted to the new development. This mechanism of administrative law is disadvantageous for the private party to supervise and restrict the administrative subject and it also ignores guaranteeing the private party's legal rights. At the same time, this mechanism suppresses the enthusiasm and activity of the administrative subject and the private party. As a result the mechanism brings about a tense relationship between the administrative subject and the private party and then hiders the administrative goal to come true. Consequently, the task to build a modern mechanism of administrative law is raised.When discussing the modern mechanism of administrative law the article grasps the inherent flaw and the intrinsic unification of opposite relations basing itself upon the background of age in China. Then it proposes the inevitability, theoretical possibility and practical urgency to build a modern administrative mechanism. The building of the mechanism of administrative law will not be completed in one action. Realization of the goal needs to solve many prerequisite problems, for example, establishing a new analytical angle to research the relation of the administrative subject and the private party, carrying on a behavior pattern hypothesis which is called "the rational man", confirming the equal legal status between the administrative subject and the private party which is the platform for dialogue and maintaining the moderate distance or guaranteeing the bilateral independence which is a basic point for mutually effect.On solving the above mentioned problems, the article attempts to design the mechanism of administrative law as follows from the angle of relationship between the administrative subject and the private party: Firstly, constructing a restricting mechanism. This mechanism means to establish a two-way restriction, under which both parties could exercise their power(right). Meanwhile, the emphasis will be upon the restriction to the administrative subject. So we should perfect the administrative procedure and the responsibility system of administrative law enforcement to strengthen the focal point.Secondly, constructing the stimulating mechanism. This mechanism intends to overcome the negative inactivity which comes from the restricting mechanism, stimulate the administrative subject and the private party's potential initiative, and encourage both parties to work hard to realize the maximum administrative law benefit under their own frame.Thirdly, constructing the negotiating mechanism. The mechanism is established on the basis of the restricting mechanism and stimulating mechanism, in which the administrative subject and the private party could exchange their opinions. Thus the mechanism could lay the foundation for the cooperation. Of the mechanism, the hearing system is a platform for the negotiation and the administrative openness system provides the foundation for the negotiation.Fourthly, constructing the cooperating mechanism. This mechanism is the inevitable result and the final significance of the development of modern mechanism of the administrative law, in which both partier could form a harmonious relation through cooperation and achieve the "win-win" condition. The administrative guidance and the administrative contract play an important role in cooperation.Generally speaking, the modern administrative law should establish a restricting, stimulating-negotiating-cooperating mechanism between the administrative subject and the private party which is going forward one by one. Combination and mutual affection pf several mechanisms tend to forge a new modern mechanism of administrative law together.