Study On Institution For Compensation Of Administrative Guidance

Administrative guidance has occurred as a new administration model after the Second World War, especially since the 1960s. It is a non-mandatory and gentle way of administration, giving more opportunities of consultations to relative people and gaining greater support, which is easier to achieve the administration goal compared to the traditional administrative acts. Japan, the United States, Germany, France and other developed countries had made a good performance in the use of administrative guidance, especially in Japan. Japan devoted to the economic development after the war and eventually led to the rapid economic development, thanks to the administrative guidance the new way of administration. In contrast, the current institution of administrative guidance of our country still has many problems such as the absence of legal control in advance and the lack of legal remedies. On the one hand the administrative guidance is in massive utilization in reality, on the other hand the relief institution is weak, especially the compensation institution, the most important of the relief institution is blank. Giving relative people the administrative relief, especially making compensation to those legitimate rights and interests damaged by administrative guidance has a more vital significance. "Where is damage, there is relief." The relief is not only a right but the protection of right. Only the compensation institution of administrative guidance is improved can the effective administration relief really be set up, and can this new administration way truly play the function.This article is divided into four parts. The first part is on the origin of the problem drawing out the guidance of the administration a phenomenon of administrative law through three cases that are often encountered in practice; the second part analyzes present situation. This article first makes a thorough analysis on the fact which created the fact potency to the administrative guidance, that is the alienation of the administrative guidance, and discusses the main performance of alienation, such as administrative compulsion, administrative order, administrative contract, administrative penalty ,and so on. On the basis of the alienation of the administrative guidance, this part analyzes the fact potency of the administrative guidance. The act of administrative guidance is non-compulsory, which means relative people do not have to act a certain behavior, therefore it does not have legal effect. However, from the aspect of results, when the personal rights or property ones of relative peoples suffer damage, the act actually has the fact potency. In the foundation of analysis about the fact potency of the administrative guidance, this part finally discusses present situation of the compensation relief institution for the administrative guidance. Not only in theory but in practice be excluded from the administrative proceedings and the national compensation, the legitimate rights and interests of the parties cannot obtain the proper relief, which seriously affected the administrative guidance such a flexible administration way to display its function. The third part, acts of administrative guidance facing relief difficulties. First of all, the act of administrative guidance faces the absence of weak legal remedy, mainly from its wrong understanding in theory. About the concept of administrative guidance, it has not formed a consistent view in the administrative legislation and the administrative law educational circle. Whether the administrative guidance should be limit within sphere? Whether the object should be the specific relative persons? The administrative guidance's legal attribute is the act of authority or non-authority? The act of fact potency or the administrative action? The article has carried on the analysis about above divergences, and points out the deficiency of each kind of understanding. The article then focuses on the ossified law attribute of administrative guidance. It points out that the ossification came from wrong understanding of relations between the authority and the compulsion. The authority and the compulsion cannot be equated. The authority may also adopt the non-compulsory means to implement. The view that identifies the compulsion with the authority, leads inevitably the act of administrative guidance to the wrong way, and finally affects the establishment of the relief institution especially the compensation system for administrative guidance. The article then analyzes difficulties of administrative compensation proceedings in the administrative supplementary compensation lawsuits and mentioned alone. As a result of the error location in the law attributes of administrative guidance, acts of administrative guidance are excluded from the administrative proceedings, and then cannot enter the national compensation scope, eventually lead to an absence of administrative guidance compensation institution, which causes a lack of effective compensation and relief for the rights and interests of relative people. The fourth part is about the executive compensation institution for administrative guidance. The article constructs the entire compensation institution for administrative guidance in the above three part analysis's foundation. The article first carries on the new understanding to the legal attribute of administrative guidance, proposes that the administrative guidance has the authority and the non-compulsory characteristic, and makes the basic framework of the compensation institution from the aspects of the theoretical basis for the compensation institution, the rights of compensation claims, and the scope of compensation. Regarding to the insufficiency of the State Compensation Law, this article finally put forwards proposals for further improvements.