On Other Administrative Normative Documents

This thesis is developed by introducing the examples of the adjustment of stamp tax , the regulation providing that couples should read the declaration of divorce in order to get divorced, some people losing their qualifications to enter universities because they have diabetes, and other typical cases that severely influence the daily lives of people, in order to elicit the subject of the research"Other Administrative Normative Documents". In management of administration, eight five per cent of the documents and regulations, which are effective to the society, are other administrative normative documents. They play very important roles in the society, but there are a lot of problems with them. Therefore, we need to standardize them urgently. This thesis explained the definition of other administrative normative documents in terms of theory, analyzed its characteristics, and discussed the elements of other administrative normative documents and the legal effectiveness after the documents come into effect, finally the thesis analyzed how to monitor them with the own point of view of the author. The whole thesis is divided into four parts as follows:Chapter One is the definition of other administrative normative documents.Firstly, the thesis standardizes the name of the regulation other than the administration legislation created by the administrative authority. By anglicizing the different names existing in the legislations and theories,"other administrative normative documents"can be called as its name. The author concluded that the other administrative normative documents indicated the orders with ordinary sanction of all levels of national administrative authority, which are made for the sake of actualizing the law with legally binding other than administrative code, administrative regulations, decisions and administrative measures etc. Taking the subject, procedure and content as the judging and analysis standards, this thesis definite the scope of other administrative normative documents.Secondly, the thesis analyzes the characteristics of other administrative normative documents. As one of the abstract administrative acts, six main characteristics can be concluded as the universality of the subject, administrative, abstract, hypostasis, multistoried, and executable.Chapter Two analyzes the legislation of other administrative normative documents.Firstly, this chapter analyzes the legislative principles of other administrative normative documents. The discussion of this chapter follows the principle of legislation according to law, the democratic and open principle and the principle of proportionality. The principle according to law is the basic principle, and it also contains the principle of reservation of law, constitute according to legal proceedings and corresponding consolidating principle. The author believed that in some cases, other administrative normative documents can create new rights and obligations.Secondly, the chapter analyzes the legislative scope of other administrative normative documents. Because not all legislative blank in the field of administration should be filled by other administrative normative documents,when administration authority constitute other administrative normative documents, they should follow the workable principle, efficiency principle and the content they concern should be the ones that haven't been provided in the laws, codes and regulations.Chapter Three, analyzes the force adeffect of other administrative normative documents.Firstly, this chapter analyzes the force adeffect of other administrative normative documents in the management of administration. The analysis focused on two aspects, (i) the effectiveness for the parties, including the internal effectiveness and the external effectiveness. Internal effectiveness meant the effect to the legislators, administrative units and officials it affiliated with; external effectiveness refers to the binding force to the private party and confirmation to the administration authority. (ii) the legal effectiveness of specific administrative act, by comparing and analyzing the three mainstream theories, the author agreed with the compromise, as the other administrative normative documents are not the origin of law; in certain scope, it can be the basis of administrative acts, but the precondition must be that the legal and effective other administrative normative documents exists.Next, this chapter analyzes the force adeffect in the administrative action of other administrative normative documents. The analysis was mainly on the three ainstream theories of the academy. The author believed that other administrative normative documents had the reference function for the case judging of the people's court, the people's court had their choices on the application of other administrative normative documents.Meanwhile, the thesis discusses the rank of force adeffect of other administrative normative documents. The discussions are divided into two layers: (i) the rank of force adeffect among other administrative normative documents, i.e. in the case of the other administrative normative documents made by the administration authorities with relationship of administrative subordination, the ones made by the administrative authority with comparatively lower level should definitely be lower than the ones made by the administrative authority with higher level;there is no similar problem in the case of the other administrative normative documents made by the administrative authorities without relationship of administrative subordination. (ii) the rank of force adeffect of other administrative normative documents between laws, regulations and documents. In the central administration level, the administrative legislation of the State Council Department and those of all the ministries in the Government was higher than the other administrative normative documents made by the other authorities. The effectiveness of the other administrative regulations made by the State Council was higher than the ministerial documents. In the local level, the regulations and documents produced by provinces, municipalities, autonomous regions(including self-government regulations and separate regulations), the provincial capital of and the larger cities are of a higher level than the other administrative normative documents made by the same authority; The effectiveness of the other administrative normative documents made by the administrative authorities with no legislative power was in the lowest level, lower than that of a higher administrative authority .Chapter Four discusses the supervision for other administrative normative documents.This chapter, mainly focuses on the restriction among the powers. It is necessary to set up the legislative, administrative and judicial supervision for other administrative normative documents. As the legislative supervision, the author believes we should set up the censorship from the legislative authority, special committee censorship, and record censorship; as the administrative supervision, we should perfect the administrative reconsideration censorship, and set up a direct, independent reconsideration censorship for other administrative normative documents. At the same time, regular cleaning-up censorship and administrative record-keeping system should be set up; the author also discusses the feasibility of judicial supervision. This chapter analyzes the operation of the judicial supervision, and the supervising standards and the treatments. The author concludes that the courts of other administrative normative documents reconsidered by the State Council should be out of the scope of the administrative litigation. Plaintiff should be the private party that was invaded by other administrative normative documents. The suit can be brought incidentally, directly, or based on a non-acceptance of reconsideration. For grade jurisdiction, people should confirm the court according to the level of the legislative authorities. In territorial jurisdiction, it should be dominated by the people's court where the defendant was located. The supervision of the people's court for other administrative normative documents are the main judicial supervision. There were three kinds of treatments of the supervising results: (i) to maintain or turn down the plaintiff's claim, confirm the claim legal and effective; (ii) confirm the documents illegal or refuse to apply it, but one cannot declare other administrative normative documents were invalid or cancelled;(iii) make justicial suggestion to the related administrative authorities.