On The Legalization Of Administrative Guidance

Since the Second World War, especially after 1960's, the administrativeinstruction took in particular and effective administration way, which was frequentlyused and promoted in the most countries' administration practice, and fully displayedthe enthusiasm, initiative and creativity of the executive power in the economical andthe social management, simultaneously guaranteeing under the market economycondition the limitation of intervention, the standard of the government management.However, the administrative instruction also has very many negative influences in thepractice for its flexible characters, which has greater superiority in managementpractice of the government, and created in the certain degree the abuse ofadministrative instruction. In the second hand, some administrative bodies in thefrequently changes the administrative instruction to the administrative directives,violating the administrative opposite party's rights and interests, which kind ofviolation is also hard to obtain the full relieves, for the lack of the concretely andprocedural, stipulation to the administrative instruction behavior by the law. So theauthor believes that it is the time to bring the administrative instruction into the legalsystem.In the view of Hayaque, if picked off all technical concepts, the legal systemmeans all the government behaviors need to receive the restriction of rules formulatedby the anticipation, which rules will make people manager their own affairs in thebasis of the anticipation, grasped to foresee the authority's compelling force in thespecific situation. According to the above, the essential of the administrativeinstruction government by law is to ensure the possible anticipation through theappropriative, available stipulations and guarantee the relative opposite party'slegitimate rights. Under the instruction of the legal thought of Hayaque, the paper isdivided the three parts to discuss the legalization of the administrative instruction. In the first part, it has analyzed the theory premise. The premise is to make thecertain analysis and judgment to the law attribute, which is the key of administrativeinstruction. Therefore, this part is first to analyzed the two different kinds of theoryorientation, pointing out the administrative instruction is a sort of non- compulsoryadministrative action through the contrast analysis and logical proof. The difference isin their constitutional parts which include the behavior goal, the behavior main body,the behavior basis, the behavior way, the induction benefit, which the last two are themost important factors. Any administrative instruction behavior which has thecompulsory or non-benefit administrative action can not be named the real theadministrative instruction.In the second part, it analyzes the necessary of the legalization of administrativeinstruction. The administrative instruction has the great significance to the socialdevelopment. However, the Chinese administrative management has inevitably thebrand mark in traditional planned economical thinking mode and compulsoryauthorities, restricted by the depth of economical and political reform. Theadministrative instruction also has this or such problems in practice, which includesthe understanding insufficiency to the administration instruction, lack ofcommunication and the exchange between the administrative body as well asadministrative relative opposite party, the insufficiency of the law on administrativeinstruction, the non-standard of administrative instruction decision-making and theimplementing procedure, and at the end of the surveillance and the relief. Preciselythese questions enables us to have the necessity to carry on the rules and regulationsto administrative instruction, thus bringing it into the legal line.In the third part, it proposes the concrete measure. Fist, strengthen theunderstanding to the administrative instruction; Second, carry on the rules andregulations in the administrative entity law to the administrative instruction; Third,perfect administrative instruction decision-making and implementing procedure;Fourth, consummate the administrative relative opposite party's right and reliefsystem, and gradually bring the administrative instruction into the legal line through the concrete measures, which will turn our the control administration to the serviceadministration, transparent administration and the highly effective administration inthe course of legalization of the administrative instruction.