On The Preservation Of Organizational Law

Since the beginning of the reform and opening up, the central government has experienced seven large-scale institutional reforms which prompt administrative organizations streamline and stretchy. However, organic law fail to play a positive role and respond to the adjustment of administrative organizations in this process. Meanwhile, academia still stay in the policy propaganda on legal authority and blindly legislative proposal. Given this situation, the article makes an intensive study of the principle of organic law reservation on account of the essential questions that whether the central administrative organization need to apply the principle of law reservation and ho w to determine the reserved scope and normative density. This article hope to build an institutional framework on organization power assignment.Firstly, by the reference of Luhmann’s social system theory, this article explains the relation of structural closure and cognitive open between law and administration when two secondary social system both point to the administrative organization. As a reflection mechanism in the legal system, the principle o f organic law reservation observes whether legislative body is indolent in exercising the organization power or excessively get involved in the self-determination space of administration. Therefore, it is imperative to define the adjustment range between law and administration in the field o f administrative organization by virtue of applying the principle of organic law reservation.Owing to the development of organic law reservation is different form the law reservation based on the protection of human rights, it is difficult to apply to the latter standard of application scope. Therefore, author put forward the standard of organic law reservation which includes the theory of significance based on the objective realization of rights, the principle of democratic legitimacy and the judgment standard of optimum structure-function. In the view of this standard of application scope and overseas experience, author see that the central administrative organization in our country legal reserve at least to the level of Organizations Directly under State Council. Therefore, the State Council, Ministries and Commissions Directly under the State Council and the Organizations Directly under State Council must be defined by laws enacted by the National People’s Congress.Though the administrative organization is in the scope of the law reservation, there is a problem about normative density. The normative density has two levels, one is the system of hierarchical law reservation, and another is the principle o f general clarity of law. The normative density abroad has three basic p atterns that contain the German model, the Japan classic model and the Taiwan reform model. Based on the observation of the administrative system and the current situation of organic law in our country, author thinks the Taiwan reform model conforms to China’s mainland actual conditions. Key words: theory of society system; organic law reservation; administration...