Administrative Law And Administrative Procedure Law Of Convergence Problems

Because the understanding of administrative law and administrative lawsuit law is different at the different period, adding to the main body of legislation is different, which leads to the model selection and law of the relation of administrative law and administrative lawsuit law.At present, our country's administrative law standard exists in the legal form, and the quantity of the legal document is multitudinous. The main body of legislation is various. Moreover the type and the potency level are different. Meanwhile the technical nature is strong, and the specialization in content is complex. Quantity multitudinous, the important status by the administrative rules and regulations, the rules and regulations form performance concrete standard facing the social life which is easy to change. These characteristics create lack of the common criterion among the administrative law. To the same connotation, the indication of the fact is different, and administrative procedure is respectively different. The way of administration, the legal document style, the relief way and the deadline are various, creating the independence among the administrative laws. But the administrative procedural law is falling behind, along with the fast development of our economy and society. Of course, the democratic government is gradually consummated. Here is another explanation.The relation between the two has the realistic difficulty which does not link up. The main performance is that the legal concept is not unified; Administrative law stipulation has not corresponding stipulation in procedural law. For example, the administration permitted the laws and regulations "The parallel examination and approval", as a result of the procedural law legislation lag, this term was recognized in the procedural law. But there is no explicit stipulation in the judicial practice to this behavior defendant. In procedural law, the way of examination, the way of referee cannot meet the requirement of the administrative. To the sued administrative action, the examination has no concrete depth and breadth in stipulation. The referee way is unitary, unable to link with the substantive law stipulated; the administrative action must follow the administrative law when it carries on the judicial examination but cannot find the legally binding the indication. The concrete manifestation is that the administrative sanction, the administrative reconsideration, the administrative permission and the present administrative proceeding system can not link up.The reason why they can't link up mainly is that the legal concept in administrative law and in the administrative procedural law is not identical, and the massive existence of indefinite legal concept is another reason. Because the concept in the administrative law and in the procedural law, to the same connotation of administrative fact, is different, there is no common working language between the administrative law and the procedural law. Because of existence in the indefinite legal concept, it creates the inconsistent understanding. Next, because the judicial examination to the concrete examination hasn't stipulated clearly, the examination standard to the defendant's main body qualifications is different, and the administrative proceedings are operated inconsistently in different places. The way of examination is not unified (the depth and breadth in judicial examination are not clear).The standard in administrative procedure is not unified (set apart from discrimination or slight defect) Moreover, there is no referee way which corresponds with the administrative law (the way of administrative referee is unitary, which is difficult to meet different referee's request). Finally, the administrative law is a series of independent law which should be an organic whole.There is the intrinsic positive connection among the thousands of administrative law standards and they have the same principle or the criterion. These principles must be applied to the administrative legislation, the law enforcement, and the judicial activities. Violations must be corrected in the administrative judicature examination. In the judicial practice, the court, when evaluates the action which violates the principle, lack the powerful and effective evidence. To solve this problem, the multitudinous administrative laws and regulations are needed by the legal form, to formulate command, which must follow the administrative law. It must fix the basic concept and connotation. Administrative legislation and law enforcement should follow the identical principle, unification, and links up with the administrative procedural law, making the administrative legislation, the law enforcement, and the judicial activity have the same indication to the identical connotation fact. The depth and the breadth in judicial examination must have the explicit limits. The basic principle of administrative law has the legal stratification or indication in the administrative proceedings, making the referee has the legal basis while using the principle, making the law bridge between the two.Under the condition of formulating a systematic and complete administrative code with great difficulty, we can establish Administrative Law General Clauses by using the practice of Civil Law General Clauses for reference to fill in the blank of administrative basic laws in our country, providing the basic standard for activities of administrative subjects and judicial organizations. The new established systems was based on the legal systems, adjusting the relationship of national political life, provides the basic legal principle and system for legally ruling the nation. It is significant to advance the legally ruling the nation.Formulating a scientific and sound administrative law general clause, in line with China's national conditions, is an important symbol of Chinese characteristics of the socialist legal system to be built in 2010It is also the only way to build a socialist legal nation. Receiving the Administrative Law on the basis of the Administrative Law General Clauses, receiving and cleaning administrative laws and regulations on this basis is feasible to work out the problems...