Research On Department Principle In Administrative Legislation And Its Controlling

The administrative legislation of our country is affected by administrative system and legislative system, and all comes from the administrative department. It leads to the present administrative law and regulation conflicting each other in the course of administrative execution.This phenomenon is harmful to interests of relative people of the administration, and influences the process of administrating by law and seriousness of administrative execution. This text tries to seeking a effective way to control administration legislate"department leading factor"through analyzing its behaving , reason and.control measure, in order to realize scientific, democratization and standardization of administration legislation. This text is divided into such four parts.This first part mainly introduces the concept of administrative legislation and department's leading. The administrative legislation means that the administrative agency make administrative statute, administrative department rule or regulatory file according to legal process, functions and powers. The phenomenon of department leading in Administration legislate means all the departments in administrative agency utilize the deficiency in the current administrative legislation and develop its influence fully, make the department's interests legalization.The second part elaborated the administrative legislation "the department principle" main performance and reality harm. In the administrative legislation "the department principle" is produces under the benefit actuation, mainly has following three kind of manifestation. First, strengthen or to expand this department's field in the form of legislation; Next, seek the unreasonable economic interests through the legislation; Then is to reduce the responsibility and the duty of the administrative department through the legislation. The influence are serious. It is disadvantageous to the socialist market economy health development, not suit to the socialism country under the rule of law construction basic requirement, and is challenge to the fair and harmonious of the society.The third part mainly investigates the reason of"the department principle"phenomenon in administration legislation. The author thoughts is multi-level. The main reason of"department's leading factor"lies in: the identity of administrative legislator is special(combine legislator with law-executor), the supervision of administrative legislation is uncompleted, and the procedure of administrative legislation is not perfect.The forth part is the most important in this text. This part mainly investigates the measure of controlling"the department principle"in administrative legislation. Improving administrative procedures in this regard, the authors make several recommendations. System should first establish Chief legislative avoidance system to resolve the question of the main departments double. Second, improve public participation in the system. Through open legislation, public dissent series of specific laws to deny the establishment of open expression of popular channels and mechanisms for coordinating interests. Third, to establish an expert participation in the system,and make participation of experts to draft rules and other regulatory documents mandatory procedures. Finally, to improve our system of public hearings.Through clearing the hearing means and the personnel involved make that the system of public hearings on legislation can effectively play their role.On the executive and legislative supervision, although China has made some parliamentary oversight of the normative basis, But there are still quite a number of absence. The enabling legislation is not be strictly limited, Authority is not clear, arbitrariness, the lack of a clear mandate, a large number of blank or authorize broad mandate, while the subsequent lack of effective control measures. Faced with this situation, we must first improve the existing registration system to make it play its due role. Second, it can set up a committee, the the full-time committee in charge of the legislative bodies, the legislative process, legislative authority. various aspects of the scope of legislative oversight. Administrative review of the administrative legislature is a internal review of the administrative system. Through administrative review as a means to control the executive and the legislature, is of great significance today. Chinese law already provides a number of administrative review mechanism, the main problem, however, is still far from complete on the existing legal provisions, the regulations have not operable, lack of balance. In this regard, can learn the experience from Germany and Taiwan. Set the normative basis of internal control of the executive and the legislature. In judicial review, China's current system is limited to a judicial review of specific administrative act. The text proposes that establish a specific solution of application systems.The unreasonable distribution system of financial is one reason for the spread and breeding of the sectionalism.Operation of the financial mechanism must be regulated, in order to cut off the link between departmental interests and administrative legislation.