A Study On The Legal Problems Of Expert Consultation In The Process Of Administrative Decision

Expert consultation here is that the expects, using their professional knowledge and skills, provide consultation which is neutral, professional and scientific for the government departments to help to make their executive decisions more scientific and democratic. Nowadays, expert consultation has been widely used in different areas of social life, and also found in different stages of administrative activity. However, in theory and practice, we haven’t focus on it for a long time, so that many insufficient aspects still exit in current legal regulations and practice.The shortage and problems in five areas of expert consultation in the process of administrative decision-makings should be pointed out. Firstly, the selection of the experts is an optional activity. The decision-making organ has the unlimited ability to decided which expert should be selected. Thus the expert consultation can be affected, at least to a certain degree. Meanwhile, the deficiencies of the experts themselves makes the quality of consultation can’t be fully guaranteed. Secondly, the scope of the consultation is uncertain. Whether the expert consultation should be applied and the range of its application are decided by the decision-making consultation. In other words, it’s difficult to guarantee the application of the expert consultation.In addition, the technical issues and value problems are often mingled, which always make the experts cross the area of expertise and make an consultation on the value problems and thus will mislead the decision in the end. Thirdly, the publish of the expert consultation is always delayed and opaque. There is no regulation that defined clearly whether the expert consultation should be published. And in practice the expert consultation always remains private which provides the possibility for the decision-making organ to escape from the public scrutiny. Fourth, the responsibility assigning mechanism of the expert consultation is not sound. The experts and the government do not have to take any responsibility for the wrong consultation. Finally, the right guarantee of the experts should be improved. The function and the status of the expert consultation in decision-making is ambiguous. So, the experts’right in the context of discourse and the right to information is not guaranteed. On the side, few rules refers to its award and relief measures. The above five problems have seriously impacted on the function of expert consultation in our country. This paper analyzes the expert consultation’s legal nature in the administrative decision-making, and at last confirms it as a privatization type. According to the characteristics of the expert consultation, solutions are put forward to solve the five above problems. First of all, expert database should be established to complete its operation mode and to minimize the discretion of decision-making organ. The expert database should be based on the requirement of equilibrium for the consultation as it can be balanced on the both sides of knowledge and benefit. Secondly, define the role of expert consultation as a legal procedure in administrative decision-making. The scope of the consultation and its application should also be firmed. Thirdly, different regulations on information disclosure in the administrative process can be learned from America, to make the publish of the expert consultation to be a clear obligation. The entire course of the expert consultation from its selection to its final submissions should be open and transparent, and at the same time, the organ’s respond to the suggestion from experts or the public should be in time, those who disobey should be investigated and held accountable. Fourth, the internal liability of the experts should be accounted as their consultation must be neutral. The responsibilities of the administration and the experts should be differentiated to avoid the "blame game". Finally, on the one hand, ensure the experts’ right to information and participation of in the process of consultation. On the other hand, it is necessary to set up relevant promotion mechanism for the experts, and to provide material support for them. Furthermore, the relief channels should also be provided.