Rule By Soft Law In The Administration

Soft law is one expression for behavioral performance of human society. It is developed on the basis of both downfall of national administration as well as blossom of public administration. Since middle-late 20 century, the one-way national administration declined and then public administration which is open and comprehensive came into being. Public administration puts emphasis on mutual-administration which is dispersive, open and negotiable, furthermore, it is destination-oriented and adopts soft and negotiable methods rather than imperative or compulsive means to implement the administration. With this background, soft laws are introduced in the field of administration.Traditional administration is short of sincere, effective and sufficient communication with the public in legislation. On the other hand, it stresses more about compulsion and sanction and mutual learning and understanding are ignored, which results in tensional relations between government and the public, as well as the inconsistency between regular expression and practice. In order to conquer these difficulties, we must think much of struggling, thinking and strategy-adjustment through effective and significant communication with the public. Soft law is destination-oriented and it concerns much on the cooperation between government and the public which is eligible for the status. Its leading mechanism is incentive instead of compulsion, which allows public-participation to prompt the administration by offering manual, monetary and substantial encouragement as well as adopting the suggestions of the public.This thesis consists of three chapters:Chapter 1: Conception of soft law. Firstly, the conception of soft law is explained in this chapter. Soft law is a recapitulate phrase which refers to many phenomena, but there is one common feature among these phenomena, that is: its implementation is not based on the enforceability of the government as a behavioral performance of human society. Secondly, all the characteristics are specified in the chapter. Soft law has its own features which are different from common law, e.g.: it's flexible for its establishment and regulations; its implementation is not based on the enforceability of the government; its legal hierarchy is undefined; there are much democracy-negotiation in the establishment and implementation of soft law. Thirdly, the origin and sources of soft law are defined in the chapter. It mainly comes from public policy, self-disciplined criterion, professional standard and flexible regulations, etc. Finally, importance and value of soft law is stated in the chapter. The value concludes practical and theoretical ones. For practical value, soft law is supplementary for hard law and it could be changed to hard law in certain conditions. For theoretical value, it is cost-saving for legislation, execution and judicature, furthermore, it is more democratic and constitutional.Chapter 2: Soft law and administration. Firstly, crisis for traditional administration is explained in this chapter. Citing"forbidding the fireworks"and"problems encountered during the implementation of"Trade Union Law"for example, a more effective method of management is required due to the practical default of traditional administration. Secondly, public administration is such effective method of management, which is diverse rather than unitary. Specifically speaking, current public administration consists of government organization, non-government organization and multiple management of enterprises. Then public administration and soft law are stated in details. Soft law is destination-oriented and it is government-public cooperated, therefore, it is eligible for open and diverse public administration.Chapter 3: The expression and effect of soft law in public administration is specified in this chapter. Without any doubt, there are many soft laws in administrative law which are called administrative instructions, administrative promises, internal regulations and administrative factual act, etc. in administrative law in mainland.Firstly, soft law in public administration is stated herein. It's definition is much comprehensive and it mainly concludes law, regulation and rules whose clauses has no specific legal responsibilities (soft law in hard law); rules, regulations and principles for autonomic organization of mass sport (village and neighborhood committee), C.P.P.C.C and social community, business community and colleges and universities. There are many soft laws in these social communities, especially business standard, regulation and administrative behaviors, etc. e. g. administrative instructions, contract, adjustment, incentive and factual act. All the soft laws abovementioned have the common features as follows: they are both local and business-to-business; they are cost-saving; they are implemented by"unenforceable organization"and public organization (trade union, women's federation, village and neighborhood communities, etc); they use"soft compulsion".Secondly, the practical implementation of soft law in public administration is stated herein. Soft law can be implemented through variable means of method, and non-compulsive administration is one of the important means. There are mainly several means in the implementation, e.g. administrative instruction, contract, adjustment, incentive and factual act, etc.Thirdly, soft law and administrative sanction is described. Administrative sanction is more difficult for learning and implementation. It is comprehensive in administrative activities which is used in adopting legal effect and judgement of legal requirement. Administrative law concerns much about how to properly limit the implementation of administrative sanction and how to make it more effectively. It is the same for hard and soft law in the field of administrative sanction, and soft law could be more effective. Soft law can affect administrative sanction, e.g. the implementation of administrative sanction can be controlled; the administrative sanction can be more reasonable and more confirmed. On the other hand, in order to properly control the administrative sanction and make it more fair, the administrative organization should collect more information from the public and communities to constitute soft law; soft law should be checked frequently by administrative organization.Finally, soft law and judicature is stated in the chapter. Generally speaking, in case someone breaks soft law, he will not be sanctioned by government compulsion, but will always be condemned by social public opinions or any other kinds of social pressure. It is proved that soft law is more effective by means of judicature, and it will be helpful for soft law to make it public which will also eliminate secret administration. A more effective method is to connect soft and hard law together and then put it into the system of judicial guarantee. Therefore, soft law can make the administration much clear, fair, coherent and responsible.