Study On Problems Of The System Of Giving Reason For Administrative Act

With the expanding of the modern administrative power, the administrativepower constitute a wide range of threats to personal freedom，the system of givingreason for administrative act is developed to control the administrative power.Unlikethe beforehand control of administrative hearing and the afterwards control ofadministrative litigation, the system of giving reason for administrative act requiresthe administrative subject to show the legitimate reasons and reasonable reason atthe same time the administrative behavior is made,to achieve the purpose of coursecontrol administrative power. Many developed countries stipulated the system ofgiving reason for administrative act in the administrative procedural law, in thepurpose to control administrative power, and to promote the rational administrativepower exercised.Our country also set administrative behavior shows that reason obligation inmany special administrative laws, but as a system, the rules also appear too thin,hard to constitute a powerful restriction of administrative power. In order to perfectthe system of giving reason for administrative act of our country, through theanalysis the relevant system at home and abroad, this paper discusses the presentsituation of the system of giving reason for administrative act, insufficient and theway to improve. This paper points four parts detailed discussion:The first part of this paper introduces the meaning of giving reason foradministrative act, theoretical foundation and the significance of meaning.Thesystem of giving reason for administrative act is the result of the development ofmodern democracy, as the administrative subject and the administrative relativeperson is at the equal status, administrative subject have the obligation to explain thereasons for the other party. Administrative subject explaining the reason is thereflection of being responsible for people, as well as the need of administrative public. It can prevent darkroom operations, and protect citizen’s litigation rights. Thesystem of giving reason for administrative act can also improve the acceptance ofadministrative behavior, to complete the hearing procedure feedback mechanism,and to control of administrative discretion effectively.The second part, analyzes the scope and content of the system of giving reasonfor administrative act. Generally, giving reason for unfavorable administrative act isthe core of the system of giving reason for administrative act.But, in order to makeadministrative power as exercise, benefit-granting administrative action and theabstract administrative action also gradually be thinked to explain the reason. Therange not need to explain the reason of administrative act is very wide also,including not hurt others rights and interests, and the other party already know thereason, the same administrative behavior, as well as a large internal order, etc. Theadministrative action to explain the reason includes legal reasons and justification,legitimate reasons include legal fact and legal basis, the justification includes thelegitimacy of the details and legal basis. As the core and the real elements of thesystem of giving reason for administrative act, the content must be combined withspecific case on the legality and rationality of description, to make relative peopleunderstand administrative objective and subjective considerations.The third part, analysis the present situation of the system of giving reason foradministrative act.There are many rules of the system of giving reason fordisadvantage administrative act, in parts of the law, administrative rules and othernormative documents.But these Provisions are very simple and lack of operability, itis difficult to form a powerful constraints on administrative behavior.Manysubstantive administrative law also set obligations of giving reason foradministrative act.But those obligations are not specified in detail of the content,scope, form and remedy measures. Aa a result, it did not become a generalobligations actually.There are three reasons to explain the backward of the system:One, service government has not yet been completed, civil servants and overallservice consciousness; Two, the sense "heavy entity, light procedure" is strong in lawenforcement departments, the procedural justice has not yet become a generalconsensus; In three, our country’s administrative procedure legislation lag, lack unified program law explanation system.The fourth part, to explain the content and way to perfect the system of givingreason for administrative act.In order to improve the system, we need to explicitlyexplain the system’s content, scope,form and remedy measures, to make the systemoperability.To further improve the system’s remedy measures, relative can adoptadministrative reconsideration, litigation or other means to remedy.Through drawinglessons from foreign explained that the reason system’s legislation, perfecting theadministrative action explained that the reason system has two ways to choose:One,further improve the existing system, through a single legislation perfecting thesystem of giving reason for administrative act;In two, the legislature ofadministrative procedure law, establish and improve the system of giving reason foradministrative act.