A New Vision Of Chinese Administrative Proceedings' Thinking

Chinese administrative proceedings attach much importance to the unity of social effects and legal effects, it usually aims at solving disputes essentially. However, when it comes to the functional consequences, we will find after over twenty years'operation the social and legal effects have been worse and worse, still,"though the case is closed the issue is not settled". Notwithstanding many excellent micro institutional and macro structural diagnosis and modifications to the administrative proceedings, most of them confine to researches on its external institutions under current idea and thinking, with few touches and reflects the internal litigation culture underlying the administrative proceedings. Regarding the premise that different litigation culture and thinking will nourish different regime necessarily, the administrative proceedings establishing itself in the extrinsic litigation culture of our country will be resisted and impacted by domestic autogenous orders during its function. Hence, it's necessary for us to analyze and to probe the foundation of Chinese administrative proceedings which serves as a fundamental problem thoroughly and profoundly.Undoubtedly, current Chinese administrative proceedings can be traced back to western administrative proceedings after whom the former attempts to follow both in idea and institution completely. In other words, if we want to seek the fountain of Chinese administrative proceedings, we can't deviate from the western's. The division of powers, citizens'sense of rule of law, the mature situation of executive power's running breed western administrative proceedings together, because of which the administrative proceedings abides by the antagonistic thinking(the executive power against the judicial power, and the executive power against the citizens'power). This means Chinese administrative proceedings—the copyist—manifests the same logic form, that is, the antagonistic thinking.However, the administrative proceedings building on the antagonistic thinking had an adverse fortune. Not to say the many drawbacks confronted in its normal operation, there has been a concentrated criticizing movement derived from the inner since the latter moiety of twentieth century. The administrative proceedings'functions of solving disputes neutrally and promoting social improvement have been questioned generally, the legal culture to achieve individual rights through courts and the classical judicial mode out of it have been the target of widespread criticisms. To cope with this, the legal profession of Chinese administrative law has been turning to the internal administrative law besides traditional judicial controlling.Only when the logical thinking and cultural basis of Chinese administrative proceedings are consistent with its generating circumstances can we save it from the distress. The entrenched unitary political structure of China revises the application of the principle of powers'division greatly, the situation that we are still at the junior stage of administration according to law imposes a restrictive regulation on the administrative proceedings, the government-oriented progress of rule of law because of space and time condension dooms the basic situation between administrative power, judicial power and citizens'rights, the legal proceedings of policies-implementing type under bureaucracy contradicted with antagonistic litigation thinking radically.As a result, it is reasonable and necessary for us to rebut the antagonistic litigation thinking on grounds of China. With the view of the contrasting between citizens'rights and administrative power we can't diagnose the current Chinese administrative practice, on the other hand, the government's (who leads the progress of rule of law) property requires the association and communication between citizens'rights and administrative power. The shaping character but not the congenitalism of antagonistic situation hinders the way to constitutionalism in China by means of antagonistic thinking, instead, we should start from the inantagonistic thinking of judicial power and administrative power. In front of the new logic of citizens'rights and executive power, also judicial power and executive power, the administrative jurisdiction will take on its original appearance.It is true that to realize administrative rule of law by way of judicial supervision is an independent spirit and academic pursuit as well as belief to which every administrative law researcher should stick. And we must emphasize that when we are criticizing the antagonistic litigation culture, in no way can it be construed to the fact that we have given up the pursuit and belief. Rather, we are taking a realistic position to response to the administrative rule of law and administrative practice at the junior stage of administration according to law circuitously. We are pursuing"what kind of administrative rule of law should we have","what kind of administrative law should we have","what kind of administrative jurisdiction should we have"on the thinking of administrative law's Chineseness and self-awareness. By doing this, we can diagnose the interim practice of the Chinese junior stage of administrative rule of law, then pave the way to antagonistic constitutionalism which means dignified, moral, civilized and happy lives!...