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The Basic Mode Of Legal Administration

Posted on:2011-03-30Degree:MasterType:Thesis
Country:ChinaCandidate:Q H YangFull Text:PDF
GTID:2166360305981603Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
Questioning the legitimacy of the administrative power, which has become a fundamental proposition of administrative law, constitutes the moral foundation of the legitimacy of the executive power. In China, researches'debating on the basic theory of administrative law has been going on for more than 20 years,and during the process more than 10 theories have been raised, such as"service theory","controlling power theory","balance theory",etc. But each theory, which only touched some characters of administrative law from one angle and on one level, could not interpret the development of public administration and the change of administrative law,so none of them could be treated as the basic theory of administrative law. In contrast, the theory of power control plus service ,which surpasses the limits of strict rule of law and pure serving point to answer the basic question of administrative law directly that administrative law controls and justifies administrative power from its process and purpose to realize public interests as a law of power-control and serving.The theory of power control plus service try to provide complete theoretical logic for unifying powers and responsibilities during the process of administration, and to set up a scientific standard for the legitimacy of using the administrative power . This is consistent with administrative practice and future direction, but as a brand-new academic point of view, it has not formed a comprehensive theoretical system. So this article is aimed to improve the system in the following three areas:First of all, the theory of power control plus service is based on the assumption of human nature to pursue its own interest to deduce the formation mechanism of the public interest and administrative law. It referred to public choice theory model, extended the "economic man" assumption to the political and public administration areas. In the horizon of the theory of power control plus service, administrative body as the rational economic man to pursue maximize personal interests, unconsciously promoted the public interest under the guidance of the administrative law. The change in human nature assumption is the essential difference between economic analysis of the administrative law and the traditional administrative law theory, is the logical start point of the methods of legal administration, and is the theoretical premise of the theory of power control plus service, which built the constitutional constraints on governmental power theory and empirical basis. Thus, the administrative law which takes control power plus service as its theoretical core, and characterized by absorbing encouragement and constraint, make the administrative power got the moral priority, economic utilitarian and political legitimacy.Second, the public interest is the logical starting point and foundation to promote the administrative law to become a department law. According to the theory of control power plus service , pursuing public interest is the purpose of administrative law and the foundation that makes administrative law become department law. Maintaining and allocating public interest is the he essential content of administrative law. Whether the public interest is effectively realized is the final criteria for judging the administrative power and the legitimacy of public administration. The true sense of public interest is shown by its becoming the core concept of administrative law and the popular principle of applying, translating and balancing the administrative law. Therefore, the administrative law is merely a kind of law to maintain and allocate public interest.Finally, Dayu flood control extended the basic framework for the legal administration. For public administration ,"the key question is what's the purpose of using the power and how to control it". Just like Dayu flood control , legal administration must follow the aim of public interest and the inherent regulation of public administration. So we should focus on the ease of the administrative power. Constitutional law and administrative law confirm the law's service-oriented and control functions for public administration in their respective level, guide and control the public administration serve the people effectively, achieve positive interaction between state and society, promote the general increment of the public interest and personal interests, and make the administrative and law complement each other. The practical change of the mode of legal administration in the modern administrative law, highlights the functional essence of the concept of the rule of law and standardize trend of services tendency , and also proves the theoretical rationality for the theory of power control plus service from the empirical level.
Keywords/Search Tags:the theory of power control plus service, legitimacy of administrative power, public interests, economic man assumption, legal government
PDF Full Text Request
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