Perspective Of Balance Theory:the Value Orientation Of Administrative Procedural Law In China

Nowadays, administrative power has penetrated into all aspects of the complicated social life. Then how to stop the unlimited expansion of executive power is capturing people’s attention. The administrative procedure can effectively control the administrative behavior, and it is also the core of modern administrative law. The value orientation of the administrative procedure is the basis of the value orientation of administrative procedure legislation and the realization of law. Because the application of legal norms is under the guidance of legal principles; similarly, the well-structure of administrative procedure law relies on a scientific choice of administrative value orientation. Considering the lack of the theory of management and the theory of right, control the protection of civil rights and the control of administrative power, in these two theories, are not balanced. In order to solve this problem, the author advices forward the idea of "the balance of the administrative power"--making the legislation and enforcement of the law under the guidance of "the balance of the administrative power" theory, which is the basis of legislation of administrative procedure law. Since the idea of balance has a solid legal philosophical foundation and integral realities in China, during the process of enacting Administrative Procedure Act, we should be guided by the theories system of socialism with Chinese characteristics and the basic line of the communist party of China, legislation Law and current administrative law concept; transform our legislation idea; continue upholding the values of order, impartiality and efficiency so as to ensure a overall, dynamic balance between the rights and obligations of administrative subject and that of its administrative object as well as a same balance between individual interest and public interest. The function of idea is to provide an ideological foundation for institution design, while the realization of an idea n needs institutional guarantee. As far as I concerned, based on the idea of balance, in order to fulfill the legislative value orientation of Administrative Procedure Act we could follow those approaches:establish a balance between civil rights and administrative power; legislatively set up a supervision mechanism of administrative discretion; diversify administrative practices through procedural legislation; build an incentive mechanism aiming at legalizing specific administrative act and administrative decision-making process in procedural law; construct a sound administrative proceeding responsibility locating system, etc. Guided by the idea of balance, the realization of legislative value orientation of Administrative Procedure Act would contribute to establishing a sound system of procedural legislation as well as the rules of order.