Legal Control Of Administrative Guidance

Since the middle of the twentieth Century, with the development of the practice and theory of the modern market economy and the enhancement of the democratic and legal sense of the public, there appears great demand for innovation of the administrative measure. Administrative guidance exactly meets this social demand by its agility, high efficiency, equality and non-compulsion. And with its growing special function on administration, many market-economical countries' attitudes towards it have turned from denying to affirmative and then to adopting. In china, since the 80s of the twentieth Century, administrative organs and its personnel gradually and consciously applied the gentle way, administrative guidance, during the transition period from planned economical system to market economical system. It's feasibility and effectiveness came to be noticed. And at the same time, the defects and side effects of it also appeared. No doubt, one of the reasons of such side effects is because the system itself. However, the main reason is the lack of necessary legal binding, which makes it out of the reach of law. Therefore, this thesis is focused on the legal control of administrative guidance.There has been long controversy on the necessity and extent of legal control of administrative guidance in both theoretical and practicing circles. My opinion is that the legal control of administrative guidance is the certain claim of a government of law. Firstly, the legal control of administrative guidance is decided by its own nature. As a non-compulsory administrative action, administrative guidance has the essential character of administrative action—authority, which can result in legal effect. Secondly, administrative guidance is consistent with legal administrative principle. The opinion that administrative guidance will fail the legality is a misunderstanding of it. Therefore the administrative guidance should be constructed within the existing legislation and restricted by law.Now that legal control should be imposed on administrative guidance, to what extent should it be imposed is another problem. The reason why administrative guidance is welcomed is that it is agile and highly effective. So too rigid legal control will inevitably cause the loses of its function. So a balance between efficiency and power should be sought. The right way of controlling the administrative guidance will help the rightful performance of the administrative guidance. Reviewing the history of the legal control of administrative power, two models can be found—strict-rule mode and proper-procedure model, each has its own advantages. With the continual expansion of administrate power, the limit of strict-rule mode gradually revealed. And proper-procedure model is more and more emphasized, which is determined by its own peculiar value. However, combining the legal history and the defective reality of the legal control of administrative guidance, in china the two models should be applied at the same time in order to achieve the goal better.Based on the above analysis, suggestions on building the legal system of controlling administrative are given below. Firstly, legal regulation on the subject of administrative guidance, legal basis and behavior pattern should be practiced. Secondly, administration behavior should be regulated through the administrative procedure designing in order to make the object of administration participate and supervise the administration practice. Next, the legal liability and legal remedy should also regulated to provide legislative support for the object of administration to seek redress.