Analysis Of The Legal Relief Of Administrative Guidance In China

Due to the characteristics of non-coercive, flexible and selectable, administrative guidance differs significantly from traditional administrative ways such as executive orders and administrative enforcement,which has been used widely by Japan,the United States,Germany,Korea and other countries since the60’s of the previous,and has been exploring in the process of establishing and perfecting the Socialist market economy system in our country.On the one hand,it avoids the shortcomings of traditional administrative ways and achieves good effects in social managementOn the other hand,owing to its imperfections and other factors,some governments and departments make for the implementation of administrative guidance and cause actual damage to the counterpart’s legitimate rights and interests,but people have no access to get relief effectively,then the credibility has been affected seriously.Therefore,it is important to strengthen the legal relief of administrative guidance system on theoretical and practical significance,for maintaining the rights and interests of the counterpart and promoting the action of administrative guidance in accordance with the reasonable.This paper is divided into three parts.Part one firstly introduces the meaning of administrative guidance,then points out the administrative guidance play a role in guiding the behavior selection of enterprises,improving the market supervision, coordinating the relations between communities,innovating the style of administrative management,helping to answer to public crisis in the area of economic and social management.Because of imperfect of the system of administrative guidance,short of procedures constraint and system safeguards,excessive discretionary power of administrative subject,there are some unlawful and unreasonable actions such as the alienation of administrative guidance,which take the private parties to actual damage,and make disputes relating to administrative guidance from time to time.However,in the traditional theory of administrative law,it is not actionable.By analyzing the legal nature of administrative guidance,we think that administrative guidance is a kind fo discretionary and powerful administrative acts,which should be given by legal remedies.The second part describes the current legal relief of administrative guidance in China.Although there are some legal provisions of administrative guidance at all levels in China,most of them are function and tendency of the government.They have more principle and less operations,especially lack of legal norms of liability and relief,which results the phenomena that administrative guidance is excluded from the administrative review, administrative litigation and administrative compensation in practice.Finally we make some recommendations for strengthening legal relief of administrative guidance system in China from the legislative, Executive and judicial aspects.On the basis of summarizing the existing local authorities and departments on legislative experience in administrative guidance,we should improve the legal regulation and perfect related system,which provides a legal basis and specific provisions for implementing administrative guidance.We should consummate the administrative reconsideration system and clear the content of review by the administrative reconsideration organ to realize the remedy for administrative guidance in administrative system with the flexibility and convenience of administrative reconsideration.We should design the systems to make administrative guidance in the scope of administrative litigation and administrative compensation, then the private parties whose interest suffered by administrative guidance can get judicial remedies and compensation timely and effectively.