Research On Administrative Law Order

From a sociological point of view, order is the foundation of human existence and social development; and for the legal scientific perspective, order is the cornerstone for people to pursue the freedom, the equality, the human rights and so on great goal. Concerned of administrative law, the concept of order has a major theoretical and practical significance. The administrative law order is the result of administration according to law, and the inevitable logic of the evolution of human politics order, therefore is also the important topic which the administrative law theory must solve. But because of the misreading of the traditional "administration order" by our country's administrative law scholars who considered that too much emphasis on the concept of order is to emphasize stability and repression, and is to deny the value vicissitude of the administrative legal system's, this has led to research deficient of the administrative law order. The author who devotes for a long time after studying such a foundational question of administrative jurisprudence discovered that perhaps "the order of administration" has a different world, the administrative law order and the tradition "the order administration" is not same, it is dynamic, autonomous, development, has own evolved mechanism and the value vicissitude rule, has own logical system as well as the operation rule. The author selects such a topic is want to use one philosophy speculation spirit to explain that the order view in the administrative law localization, use one kind of legal science's logic to explain the value vicissitude of administrative law order, use one kind of comparative law's angle of view to ponder the Western social order theory for the enlightenment of our country, and use one practice's thought to consider the running status as well as the establishment plan of the administrative law order, this is the value of the subject, but also the ponder pleasure is.The topics will be guided by the lines of thinking as "from the concept defined to the system construction, from the value vicissitude to the practice consideration, from found that the problem to solves the problem", will be firmly hold the basic theory of administrative law to conduct research, and practice an empirical study focusing on "the rights and powers, Government and the citizen". The paper attempts to achieve such achievements: defining clearly the concept, straightening out logic, deepening understanding effect, cleaning up the erroneous zone in the traditional administrative law research about "the administrative law order", finding out the evolution logical mechanism of the administrative law order, discussing the empirical implementation path the administrative law order realized immediately in China, the author expected that this paper can provides the beneficial consciousness reference for China's administrative law theory and the practice. The nuclear structure of this paper draws up four main parts (excluding the introduction and conclusion), the summary is as follows:Part I: Elementary theory of the Administrative law order. This part mainly discusses the general question of administration law order, cutting into from the jurisprudence angle, and analyzes three main questions: (1) concept limits of the administrative law order; (2) the formation mechanism of administrative law order; (3) expand awareness of Administrative law order. One of (2) part is an innovative and difficult of the full text, it is it is necessary to analyze the formation mechanism of the administrative law order which involves three stages as follows: from administration organizations to administration expect, from administration expect to administration legal rules, and from administration legal rules to administrative law order. One of (3) part is study of two Western jurists about the theory of social order with the purpose in order to better define the order principle for a better boundary in our country administrative law status, the article believed that the administrative law order must be the primary value of administrative law, even most basic value. Its purpose is twofold: Understanding the general meaning of the administrative law order; determining the frame of reference for further drafting.Part II: Value analysis of Administrative law order. This part is mainly composed of three numerators, the author attempts to review and summarize the 30 year development process of Chinese administrative law in this chapter, the goal is to withdraw the value variation process of the order view. From the initial "the political rules and regulations' management administration law order" to "Controls under the power and the balanced idea basic compatible administrative law order" and then "Administrative law order under the vision of building a harmonious society", the author attempts to show progress in the development of Chinese administrative law course, and analysis the characteristics at every stage of the administrative law order (stress from right and power perspective), indicating one viewpoint: the basic theory of administrative law only meets the economic development need unceasingly, safeguard and promote the livelihood of the people unceasingly, construct the good three mechanisms unceasingly (restriction mechanism, incentive mechanism, cooperation mechanism), can have the vitality, can be a foothold in the disciplines of Law. Part III: Generation status of Administrative law order under the vision of building a harmonious society. This part is a body's innovation and difficulty which melts the speculation and the empirical. First of all, the study of jurisprudence from a core concept -"interest" to proceed, to borrow "Benefit legal science" as the analysis method, discussing the logical relation between civil rights and the executive power, public power and public benefits as well as the public power disassimilation theory, trying to construct a chart to analyzes the phenomenon that public benefits and private benefits are gambling, carrying on frontage explanation about "the authority private benefit" and indicates that the prerequisite of the administrative law order movement is the rights and powers interaction as well as power at the right time under normal operation. Next, the paper will inspect the conditions for the implementation of administration law order, pointing out that "the increasing emergence of democratic politics, market economy and an increasingly well-developed legal system of the administration" are three detachment conditions advantageous to the administrative law order establishment; but "the party and government relations' complexity, administrative system's backwardness, traditional culture's stubborn, weakness of civic consciousness" are the triple bars to progress of the administrative law order.Part IV: The construction Strategy of Administrative law order under the vision of building a harmonious society. This part will closely revolve two pairs of contradictory (the executive power and the civil rights, the government and the citizen) once more to study empirically. Firstly, the paper will discuss the support idea (cornerstone) of the administrative law order movement—the service and the cooperation, trusts and communicates, the equality and the cooperation, this part will eradicate "the might consciousness" of executive power and simultaneously eradicate one kind "the privilege consciousness" of the civil rights, the author believes that only then the executive power and the civil rights carries on communication and cooperation for the entire aspects, only then the government and the populace mutual confidence interaction, the harmonious administrative law order can be established truly. Then, the paper will try to construct the safeguard system of the administrative law order movement which composed of three parts as the restriction mechanism, the incentive mechanism and the cooperation mechanism. This part is the deeper-level inspection to the former two questions, request surmounting phenomenon fetter, comes up the ponder question from the macroscopic system machine-made stratification plane and solves the problem, this part will continue to firmly hold the two pairs of the basic contradictions body (the executive power and civil rights, the Government and citizens), having a good grasp of the dynamics of the three major mechanisms for internal coordination and external coordination. Lastly, "harmonious" will obtain to indicate that the progress symbpl of Chinese administration government are administrative legal system own harmony as well as the administrative legal system and other system's interactive harmony. In defines clearly our country to move toward the harmonious administrative law order in the actual condition foundation, the article will expound further that the realize approach of China advances to this goal, that is, accurately allocating the role of government; practically transform the way administrative organs enforcement the administration law; promote the construction process of civil society and the innovation of mechanisms for citizen participation. Only aspects of these four are good grasping, administrative law order ability establishes steadily, interactive harmonious scenery between the government and the public can be realize.