Research On The Construction Of Administrative Convention System In China

This article is divided into three parts including the introduction, the text and the conclusion. The introduction mainly contains the significance of choosing this research topic, the basic problems of administrative practice, the function of the administrative enforcement of law, and the main idea of the research. This paper is based on administrative practice could be worked as an effective way of controlling the exercise of discretion in administration. Through the studies of administrative practice in Self-restraint in administration theory and path dependence theory, and according to the reference of the foreign advanced experience, and combined with the characteristics, and the value of existence in administrative practice in our country, we could construct an administrative convention system which is can be appropriate to the development of our country. Around this goal, this paper is divided into four parts. The basic idea of this paper is first to explain the elementary knowledge of the administrative practices, analyze the function of the administrative practices, study the application in administrative enforcement of law, and the mode and method on the construction of the administrative convention system.The first part is an overview of the administrative practice. This part starts with the emergence and development of administrative practice. And it briefly introduces the different development in the different period. Then, according to the conception of administrative practice, this paper analyzes the different description of administrative practice in different country. On the basis of analyzing the concept of administrative practice, the administrative practice is compared with the administrative customary law, administrative case and the administrative interpretation. Firstly, administrative practice and administrative customary law are belonged to the scope of non-statutory law in administrative law. And both need long time to become a formal formation. Administrative customary law is the superior concept of administrative practice. Secondly, administrative practice and administrative case have something similar, but administrative case mainly used in the fields of administrative litigation, and administrative practice mainly used in the fields of administrative management. And the formation and changed procedures of the administrative case is more strictly than the administrative practice. Thirdly, administrative practice and administrative interpretation have three different points, cause of condition, process and the force of law.The second part is the analysis on the function of administrative practice. It is mainly introduced by four points. At first, administrative practice can be used as a benchmark the referee. Administrative practices own the character of being the model to be followed. And provide the judgment standards of administrative practice. Secondly, Administrative practices can provide administrative efficiency. Administrative practice is helpful for administrative organs to form a set of standardized, empirical model example and practical behavior patterns. This model used in practice can greatly improve the administrative efficiency. Thirdly, Administrative practice can be used as one of the methods to control administrative discretion. Administrative practice has the power of self-restraint, and to the exercise of administrative discretion, and also has self-defense function. And fourthly, Administrative practice could achieve the justice value. When the administrative organ deals with the things belonged to one category, they could reference the practice to help them do the administrative decision. And help them to avoid making different decision in the similar cases and relatively achieve fair treatment of justice.The third part analyzes the application of the administrative practice in administrative law enforcement. It appears the application fields, forms, and the exist problems of administrative practice. At first, it mainly introduces application fields from three administrative area, which is contained tax area, administrative punishment area and industry and commerce administration area. Secondly, it is from the document, leadership instruction and the organization and personnel management three aspects to enumerate the forms of administrative practice. Finally, it mainly appears the following problems, for example, the scattered form, unclear effect, unclear judgment standard and the lack of security system.The fourth part is about the construction of administrative convention system construction. This part provides we should base on the path dependence theory to construct our administrative convention system. Introduce the feasibility and the necessity of administrative convention system. The institutionalization of administrative practice could serve as the approach of Self-restraint theory. Compensate for the lack of statutory law. Administrative convention system also accord with psychological expectations of administrative agent. And also discuss the basic principles and the standards of judgment in the application of administrative convention system. For instance, principle of administrative self-constraint, principle of equality and principle of reliance interest protection. In addition, this paper discusses the effectiveness of system of administrative convention from internal and external. For example, existing administration penalty practice system has greatly enhanced the legal status of the system of administrative convention. At last, in the process of construction of the administrative convention system, we need to construct the relevant control system and security system, internal supervisory system, judicial supervision system and the open system. To establish these mechanisms and systems is in order to ensure that the administrative convention system could be developed and implemented successfully.