Study Of Administrative Provisions

Since 1980s, with the deepening of China's economic reform, the national economy has been greatly improved, however, our history and international situation have great impact on our social development, and our government has been imposed on the responsibilities of developing economy, transferring a planned economy to a market economy, regulating the domestic conflicts of interest, assuring the security of our nation and seeking a higher international status. Therefore, our government tends to lay down and enforce policy, laws and regulations that benefit the construction of national economy. Such a tendency has led that China's current administrative organ and administrative power are further consolidated. In the current situation of our politics and culture, the power cannot be effectively restricted by the external mechanism. Administrative provisions, as the most basic level of regulatory documents, although the status of minor, the effectiveness of low rank, it is directly related to the benefits of the administrative counterparts and the final effect of administrative decision-making.My essay takes China's legislation as a starting point, firstly, I try to define the concept of administrative provision based on the legislative system of our country, divide its type, and comprehend the nature of administrative provision. From the perspective of the author's own understanding, the nature of the administrative provision shall be summarized as" administrative provision is explanations or interpretations of law implementation". Such "interpretations" includes two types: administrative interpretations and legislative interpretation. Administrative interpretation refers to those explanations on how to apply the relevant laws and regulations worked out by the state administrative organs. Why legislative interpretations exist is because the administrative organs who have the power to enact regulations itself have the right to interpret its own rules and regulations established, so they can legislatively interpret their own rules or regulation. Further more, because our administrative organs of vice-ministerial level and above have the power of executive legislation (regulation-making power) and executive simultaneously, and most of the administrative rules and regulations are presented as the form of executive details of laws and regulations, so a lot of time, such administrative agencies issued administrative provisions which have dual-nature as executive and legislative interpretation. However, the administrative organs below the vice-ministerial level which does not enjoy executive legislative power can only issued administrative provisions of administrative interpretation. Based on the above understanding, my essay is followed by a in-depth analysis of a series of incidents of violations of the law and try to reveal the confusion caused by the administrative provisions. These confusion include:China's current administrative model replaces the implementation of law with the implementation of administrative provisions; some local governments actually execute the administrative provisions in the name of administrative guidance; administrative provisions often intervene in the affairs of judiciary organs. The chaos of administrative provisions is caused by the back of our deep-rooted ills of the administrative system, such as the lack of statutory responsibilities of the Executive organs; executive discretion is too broad; the lack of administrative accountability system and so on.Given the current status of China's political culture and the judicial reform process, reform of political system can not be too hasty; step by step might be more beneficial. The author proposes humble opinion:the external mechanism of supervising administrative provision can be set up in priority, making the concept of judicial review enjoys popular support from the grassroots, making a modern political system and operation mechanisms of power under the sun become a reality in the near future. Judicial review of administrative provisions is of practical necessity, this is determined by the value of judicial review and the practical fundament of judicial review on administrative provisions. My essay tries to build the system of judicial review from the following perspectives:firstly, to establish the legitimacy of Judicial Review System; secondly, we should improve the status of judiciary organs in relation to the position of power and the executive authorities; thirdly, to build the collateral review mechanism of administrative provisions; finally to confirm the review criteria of administrative provisions.Based on the above considerations, the author tries to learn from overseas experience in the field of judicial review system, analyze the unjust and illegal facts in the process of setting down and enforcing administrative provisions in order to put forward some initial proposal.