Administrative Guidance Legal Remedy Theory

As social relations had being more and more complicated, national functions changed, administrative power expanded, the public expectation for democratic administration enhanced, administrative guidance came into being and had it's own living space and value. Since the Second World War, administrative guidance, as a democratic administrative means, which had brought remarkable achievements, has been applied widely in Japan, German as well as other countries with market economy, especially in Japan.As a try to search the balance between government and market, administrative guidance had been widely applied in our country and had significant influence on civil life. It is said that administrative guidance is the center of governmental administration under the condition of market economy. Since administrative guidance has been more and more important in our national economy and civil life, there are a lot of catfights of its status and nature. There are a few problems on administrative theories and its practical activities, for example, the problem of administrative welfare for administrative guidance. In the"Interpretations of the Supreme People's Court on some Issues Concerning the Implementation of'Administrative Procedure Law of the People's Republic of China'", put into force from March 10th, 2000, it was said that administrative guidance with no constraining force was beyond the scope of administrative proceedings. Apparently, this provision was against the spirit of Rule of Administrative of Law. To meet the demands of administration by law, it is necessary to put administrative guidance into the scope of administrative litigations, and to strengthen the administrative relief of administrative guidance. Therefore, by comparing the definitions of foreign scholar, the author tries to define administrative guidance on the basis of observation and study on history and feasibility of our administrative guidance; to analyze the litigious of administrative guidance and the theories for administrative relief for administrative counterparts in order to contribute to the discuss of legislation and practice of administrative guidance, which can not only help us to find the issues in our practice, but also to profoundly understand the problem of administrative relief.