Justification Of Legitimacy Of Administrative Procedure--From The Administrative Democracy

For a long time learning and thinking of both the theory and practice of administrative procedure, I chose the topic of legitimacy of administrative procedure. Ever since the large "procedure fever" in 80s in China, a great deal of research and exploration have gradually changed the traditional concept of neglect the importance of procedure. Meanwhile, increasing focus on the administrative procedure also led to the introduction of foreign experience, which is undoubtedly important for the construction of administrative procedures in China. However, just as the old saying "overcorrection often self-defeating", we copied a variety of procedural provisions, under the influence of formalism, ignoring the distinction between the "legitimacy" and "legitimacy" of administrative procedure. Procedure is a neutral descriptive concept. The administrative procedure which law provided is not necessarily due. The procedure which is lack of legitimacy can not obtain the recognition and acceptance from public. Only the ones with a certain substance spirit can guarantee the legitimacy basis of administrative procedure. Based on this argument, this article is divided into following parts :The first part is about the concepts related to the legitimacy of the administrative procedure. Through the analysis of the distinction between the "legitimacy" and "legality" in the level of philosophy, this article illustrate that the legitimacy of the administrative is higher than the "legality" requirement. It refers to the value of rationality and moral basis. According to the universality of the legitimacy, this article describes the theoretical basis and necessity about the justification of administrative procedure.The second part is about the methods of justification of legitimacy of administrative procedure. This article list two factors related to the choice of methods: First is the requirements of legitimacy. Second is the legitimacy crisis of China's administrative procedure. These respectively represents a theoretical requirements and awareness of real-world problems. Through the analysis on principle of natural justice and due process of law , this article believes that the legitimacy of administrative procedure contains the factors of rights, power control and efficiency in the substance targets, and participation, neutrality, openness in procedural requirements. The reason why China's current administrative procedure lack of credibility is that legislators and law enforcement pay too much attention to the surface meaning of the law, ignoring the legitimacy of administrative procedure and departing from the value of rights power control and efficiency, as well as the requirements of participation in the proceedings, neutral and openness. Because traditional models(absolutely instrumental model, the relative instrumental model, economic doctrine mode, the procedualism model) have their own shortcomings, this article believes that the administrative democracy based on the citizen participation and information openness which can realize the value of the procedure and ensure the impartiality of the substantive results, just fit the legitimacy requirements of the administrative procedure.The third part is the analysis on how the administrative democracy justify the legitimacy of administrative procedure. This article believes that if make democracy the center of a circle, it can be extended the necessary factors of rights, power control, efficiency and participation, neutrality, openness. And this is the extension model with democracy as the center. Administrative democracy is the spiritual core to ensure that these requirements and guarantee the legitimacy to achieve both substantive and procedural justice.The fourth part is about how democracy can be implemented in the specific systems of administrative procedure. The article believes that citizen participation and information openness as the core of administrative democracy, is manifested in hearing systems and information openness systems. The system reconstruction based on the administrative democracy fist requires a balanced interests of all parties and transparent hearing procedure, the balance between experts and the citizen participation, multiple-choice arrangements and two reading procedure, increase of substantially influence of citizen participation; Second, the clear defination of open range in information openness system and e-government construction.