On Administrative Guarantee

With the administration tasks in our country getting more and more difficult and tough, administrative guarantee which is created by referring to the means of guarantee in civil laws is used widely in the administrative management. However, In legislation, there is no unified Act of guarantee law and the regulations are seen in different administrative areas, which lead to the disorder of legislative basis and legislative bodies, overly extension establishment of administrative guarantees. Administrative guarantee refers to unilateral or joint administrative legal acts taken by the administrative bodies which in order to achieve administrative goal, ensures that the administrative counterparts are able to perform obligation of public law by the means of legal function and power of the administrative bodies or credits of third parties allowed by the administrative bodies or rights created in the specific property. The aim of administrative guarantee is to ensure that the administrative counterparts have the capacity to perform obligations in public law. Though most kinds of administrative guarantee are subordinated administrative acts, it cannot be deemed that administrative guarantee is subordinated administrative act, because kinds of administrative guarantee are independent administrative legal acts. According to different standards, administrative guarantee can be divided into different categories, and the main categories are compulsory and applied administrative guarantee administrative guarantee and internal and external administrative guarantee. The compulsory guarantee shall be defined as measures to endure the performance of administrative obligations, and it is not with the scope of administrative enforcement. The forms of the administrative guarantee in our country shall combine property guarantee and personal security and various guarantees in civil law could be referred to enrich forms of administrative guarantee, provided that the goal of administrative guarantee can achieved and the cost for the administrative bodies will not too high. The administrative guarantee ensures that the administrative counterpart has the capacity to perform the administrative obligation in future so as to avoid the adverse consequences which result from failure to perform the such obligations to the country and the society; it urges administrative counterparts to actively perform the obligations under administrative law so as to keep good reputations; it improve administrative efficiency and reduce enforcement costs; it helps realization of consistency of public interest and private interest. The broad application of administrative guarantee in administration lies in the profound theoretical basis, including public interest and the principle of prevention of risks consistency of right and obligations, which provide rationale to the problems existing in administrative guarantee. Compulsory administrative guarantee must be in congruent with the principle of preservation of law, while the applied administrative guarantee and administrative guarantee created by administrative contracts are free from such principal. Administrative guarantee, which is one of the conditions of administrative permit, is usually in accordance with legality and legitimacy. It is incongruent with Administrative Permission Law of People’s Republic of China and illegal for legal documents to create administrative guarantee while it is legal to make administrative guarantee the conditions of administrative permit, but it is not legitimate. In order to reduce the adverse effect of administrative guarantee to the economic efficiency, it is advisable to try to adopt feasible standards with regard to mortgage money and collateral and increase the forms of administrative guarantee in the legislations, while in concrete administrative guarantee practice, it is also advisable to adopt different forms of administrative guarantee to achieve the same effect. In the case that the creditor’s rights in administrative guarantee and in private laws are in conflict with each other, it is highly recommended to solve such conflict based on the principal of public interests.