Study On The Administrative Charge Policy Of China

The first part of the article sets out the legal connotations, legal characteristics, classification and contents of administrative charge from its concept. This old-aged governmental action administrative charge existed at the beginning of country and government, and the understandings of the concept of administrative charge vary from the different points of view on research and analysis. Based on the learning and summing up the different understandings, the author think the concept of administrative charge can be described as: Administrative charge is the fee charged from specified beneficiaries in accordance with national laws, regulations, rules and policies and regulations by state administrative organs or the unit authorized to exercise administrative functions in the implementation of social, economic, technical and natural resources management or supervision. The author generalizes the subject, object, purpose, basis and principle of administrative charge to get the legal characteristics of it. The necessity of administrative charge obtained in its important functions in the elimination of negative external effects, protecting the interests of the public, collecting funds to develop public products and etc. The legal basis of establishing an administrative charge system and the basic requirements should be followed when setting up a law are also included.The second part of the article expatiate the principles of our administrative charge system. There are dozens of theories on the general principles of administrative charge currently, the author summarized the following 5 items from these theories as the basic principles of Chinese administrative charge. The 5 principles are the principle of statutory charges, the legitimate charges principle, the principle of appropriate charges, the principle of natural justice and the principle of adopting to development. The principle of statutory charges is the primary principle to set up the charge, resolving the legal expressions of setting up the charge. The author believes that the content of this principle should at least includes law priority, law reservations, balance between power and responsibility, ultra vires invalid. The legitimate charges principle refers to that administrative charge should be justified, there should be no charges without legitimate reasons. The governs with executive authority to set up administrative charges should follow this principle when making a decision on a matter of administrative charge, or it is improperly configured. The principle of appropriate charges is the reflect of the principle of proportionality in the area of administrative charge. It refers to that the fee being charged from the beneficiaries should be compared with the benefit they got from the nation and limit of the beneficiaries' obligation should be the income of themselves and the special expenditure of the government. The principle of natural justice is to ensure the correct implementation of administrative charges, it is the highest standards of Administrative Procedure Act of the United Kingdom and is the rule of procedure which executive dominant activity, rather than a hypostatic rule. The principle of adopting to development refers to the administrative charge system should also be "advance with the times".The third part focuses on the analysis of the present system of the administrative charge based on the principles mentioned in the second part, introducing the situation of legislative and discussing the problems existing in the system and the negative influences brought by it. The problems mainly include the disorder of setting authority of administrative charge, making the regulations in the darkness, the imperfection of the present system and its operation, which are represented by the variety of the items of charge, alienation of scope, overweight of the proportion of charge and the inappropriate means for charging. In addition the supervising relief of administrative charge is not perfect. The use of the fees is lack of supervision. The expenditure is out of order, and the supervising system is powerless.The law and regulations relevant to the charge management are seriously lagging behind. The present irrational system of charge, the imperfection of the system, the various units of the government, repeated charges, and the abnormal phenomenon appeared in charging have disturbed the distributive order, aggravated the burden of enterprises and citizens, destroyed the government's reputation, aroused the dissatisfaction of the people and severely damaged the relationship between cadres and masses. In a word, the present administrative charge system of our country is in a mess and need to be perfect urgently.In the fourth part, the author displayed her own perfecting measures against the present system and its problems mentioned in part three. First of all, the contractive spirit of administrative charge should be demonstrated in the Constitution, to reflect the idea of constitutional administrative charge, Montesquieu once said "A timeless experience is: all the power-holders tend to abuse of power; they would always have been to do so until being restricted." Similarly, the governments are always tend to abuse of the right of administrative charge until being restricted by a limitation. And Constitution is the very limitation. To norm and constraint the legislative right of administrative charge by Constitution, implementing constitutional charge can provide a stable economic and legal surrounding for economic activities. At the same time, the legislation of administrative charge has to be restricted to ensure the beneficiaries can participate in the discussion of legislation draft of administrative charge, extending the socialization of law. Confirm the legislative idea of administrative charge and the principle of coordination of power and property rights by Constitution when necessary, rising it to be the highest will of people, reflecting the protection of people's rights and making it a clear obligation of the governments to charge in accordance with the law. Fourthly, the local governments should be given certain legislative power of administrative charge to ensure the coordination of power and property rights. Governments need classification which followed by power division. But neither high centralization or decentralization is adoptable for our country which has a vast territory and a large population and various nations, plus inter-regional imbalances in socio-economic development. So, only obtaining the provincial governments the administrative charge rights is more acceptable rather than endless decentralization. Make clear the range and standard of administrative charge. As a part of governmental incomes, the range of administrative charge must be appropriate controlled to implement the standardized management of administrative charge, bring it into line with the level of the entire national economy development to prevent the expansion of the scale of administrative charge to result of an erosion of the tax base and disrupt national income distribution. The decentralization and backwardness of the legislation of administrative charge procedures cause the unstableness and subjective arbitrariness on the use of administrative power which affecting the effective implementation of administrative charge. Under the procedure function mode of "Discretion has became the core of modern administrative power and procedure mechanism is becoming the choice to control discretionary power", setting up uniform rules of administrative charge procedure is necessary for controlling the implementation of administrative charge. Therefore, we should demonstrate ordinate administrative charge procedures in future law with the concern of establishing administrative law to achieve the goal of controlling the indiscriminate charges through setting up a administrative procedure mechanism. At last, perfect the supervision and relief mechanism of administrative charge. Administrative charge has the characteristics of free and compulsory, the administrative governs may use the power to charge arbitrarily causing the detriment of the beneficiaries7 legitimate rights and interests. So the author give workable measures based on the aspects of establishing supervision system and perfecting relief system.The cause of the mess of administrative charge is complicated and difficult to be cured. Through the surface, we need to develop the country's economy continuously and enhance our financial power to solve this problem; while from the macro point of view, the mess is caused by the problem of our system, we need to solve this problem through reform, non-stop perfecting our economy managing system, financial system and administrative system. All the reforms of China currently being carried out lively with a good momentum of development, the institutional problems should be solved gradually with step of the reforms keeps going forward. As the traditional administrative supervision was in a "pan-supervision" status instead of an in-depth within the administrative system and administrative process of behavior, it was difficult to play its due effect. Therefore, the norms of national power, restricting the administrative authority, implementation of the checks and balances of the powers, the establishment of effective mechanisms for legal supervision, is the fundamental way to resolve the mess of administrative charge. Only after the administrative charge being institutionalized and legalized, we can achieve the goal of "in accordance with the law charges, charges according to law.".