A Discussion Of The Reasons Of And Approaches To Agency Self-regulation

The core focus areas of traditional administrative law consist of the governmentregulation and the external control over the administrative power imposed by thelegislative and the judiciary. They insist that, in dealing with the relations between thestate and law, the principal function of the administrative law should be to check onall the ultra vires actions by law and judicial review. The contrary opinion hopes forgovernmental mode and political process, and maintains that the role ofadministrative law should be to promote legitimate governmental behavior andfacilitate the public interest. It is under such a state theory that the agencyself-regulation is proposed as a research subject.“Self-regulation” here, has itselementary meaning in regulation economics, namely as a arrangement, whereby anorganization sets standards for its members’ behavior.Compared with the external control and the control afterwards, the initial controlover the administrative actions comes from the internal control (bureaucraticsupervision) and prior control (by making rules). It is obviously true whenconsidering the background in our country. The electoral mechanism stipulated by theConstitution doesn’t run as well as it’s designed, and fail to form a normativegovernment of people’s sovereign. In the practical, the representatives can’t form aneffective supervision over the executive which is derived from themselves. Thismakes the National People’s Congress becoming a "rubber stamp", which can’t berelied on to restrain the administrative power. On the other hand, the judiciary is lackof independence (the judges aren’t independent) and constitutional review. Based onthe balance between the judicial final principle and the administrative autonomy, theexecutive has judgement leeway and discretion which are out of judicial review.Therefore, the judiciary has limited control over the executive. Faced with thedilemma, we may turn to focus on the executive, seeking that whether agencyself-regulation is possible, and if it’s possible, what are the reasons of and theapproaches to it. In this way, we may aware of what should be done more clearly. About the reasons of the agency self-regulation, in reference with theclassification in government regulation, we can select the public choice theory(corresponding to the private interest theory in government regulation) and modernrepublicanism (corresponding to the public interest theory in government regulation)as an analytical method. In public choice theory, the executive also has politicalquality and tends to become an interest group. They seek after power or fame, ratherthan the public interest through agency self-regulation. Public interest, if any, is justsubsidiary. In comparison with the gloomy outlook described by the public choicetheory, modern republicanism emphasizes deliberation and civic virtue, and considersthat one of the governmental responsibilities is to shape civic virtue by changingpersonal preferences. In this perspective, the executive attempts to administrate thesociety energetically and cultivate civic virtue through agency self-regulation.About the approaches to the agency self-regulation, scholars have listed almostall the possible practical mechanisms and methods. Based on their research andaccording to the degree of importance, the article emphatically elaborates three mainapproaches to the realization of the self-regulation: through the construction of theorganizational structure, through the formulation of rules and through the internaladministrative procedures. The organizational structure could set up the framework ofagency self-regulation. The formulation of rules could fill the space of agencyself-regulation with their contents. The internal administrative procedures couldprovide detailed guidance about the steps, sequence, forms and time limits of agencyself-regulation.In the society dominated by the executive, the agency self-regulation is perhapsmore important and also more likely to be successful. It can even become a new focuswhen pursuing the rule of law. Of course, the exploration of agency self-regulation isnot to describe the power, but to provide responsibility. And agency self-regulationmust be joined with external regulations in order to play a better role.