Research On The External Validity Of Internal Administrative Rules

Internal administrative rule, an important part in the process of government administration functioning, does not exist in the form of law or regulation and does not have direct external validity in the legal sense, but it causes a lot of controversy in practice. Given the weakness of existing research results, this paper provides a comprehensive analysis of performance and external validity problem of internal administrative rule by the means of analysis in category.This paper is comprised of the following four parts.The first part analyses the provisions of administrative rule of relevant countries and Taiwan, then summarizes the existing research results in our country and finally presents the range of internal administrative rule. Provisions and researches of administrative rule in some countries and regions are shown in the following. Rules promulgated by USA federal administrative organ are divided into legislative rule and non-legislative rule which has no legally binding. Internal administrative measures of French administrative organ are binding upon inner administrative organ and have indirect influence on the external. The issue subject of administrative rule is stipulated in the Basic Law for the Federal Republic of Germany, and it is a generally thinking in administrative law that the discussion about external validity of administrative rule is based on administrative practice and equality principle. Administrative rule promulgated by Japanese administrative organ includes interpretive standard, administrative discretion standard, payment rule and guidelines. Meaning, scope and validity of administrative rule are clearly defined in "Administrative Procedure Law" of Taiwan. There is little discussion about internal administrative rule in our existing academic research results. Based on this, this paper focuses on three common administrative rules in our practice:organizing business rule, interpretive rule and administrative discretion rule.The second part discusses the theoretical basis of external validity generating from internal administrative rule. The Theory of Special Power Relation has profound influence on administrative law theories for a long time. However, because of the defect of the theory, it had been corrected and developed. Though we have not introduced the Theory of Special Power Relation to our theory, service relation in this theory is associated with internal administrative action. Administrative self-binding theory requires that after administrative organ applies administrative rule repeatedly, administrative practice can come into being, and if lack of rational reason, a different treatment should not be done. Equality principle, especially playing an important role in the standardly application of administrative discretion, aims to restrain administrative power and prevents administrative arbitrariness to ensure that different administrative concerned people under the same situation would be treated in the same way. Trust protection principle guarantees legitimate expectation of administrative concerned people especially after administrative organ and its staff apply those unpublished administrative rule for a long time.The third part analyses external validity of different kinds of internal administrative rules. The first is organizing and business rule. Inner personnel management and setting up rules of administrative organ do not generate external validity. But the stipulations about internal administrative procedures of organ have influence on administrative concerned people. The second is interpretive rule, and it has a lot of making subject and external forms. Interpretation for one case can not be applied to other cases. This internal rule can restrain inferior organs only in specific case and can not be binding on other administrative organs. Administrative practice and administrative self-binding is formed after long time application of administrative organ’s interpretation for undefined legal concepts, and in case there is just cause, administrative organ can not apply it. Concrete administrative action by administrative organ based on interpretative rule for specific application of normative document has indirect influence on administrative concerned people, and this influence generates indirect external validity in fact. The third is discretion standard. It does not create new rights and obligations and it is the embodiment of administrative law norms so as to facilitate its operation. It is binding on administrative organ and its staff and also affects administrative concerned people by "externalization". In practice, considering the special case, special treatment can be done according to discretion standard so that individual justice is realized and discretion mechanization is avoided.The fourth part discusses how to standardize external validity of internal administrative rule institutionally. Mode of Administrative Procedure Code had been the rational choice of most countries to standardize the operation of administrative power. It should make a specification about making subject and its privilege, definite rule-making procedure, execute supervisory mechanisms like record and periodic cleaning and control the procedure wholly during rule-making. Although the court can not conduct judicial review in the process of hearing a case, it should confirm legality and effect of internal administrative rule that is the basis of specific administrative action. When the court examines internal procedural provision of organizing business rule of administrative organ, it should analyze whether the rule violates the procedural stipulation in laws and regulations and whether the identification accords with’violation of legal procedure’in "Administrative Procedure Law". Examination to interpretive rule should not affect court’s trial and should make a judgment independently according to law. Examination to discretion standard should level out among limiting abuse of discretion, avoiding discretion being rigid and realizing individual justice.