On The Application Of Soft Law In Chinese Administrative Law

It has been a long time since the appearance and popularity of Soft Law, which refers to the regulations that can’t be enforced by coercive power of state, as a comparison to Hard Law, which refers to those that can be imposed by the state coercive power. This concept of Soft Law contributes to the perfection of our legal system, and the related research has been warming up recently. However, the research on Soft Law is still a controversial issue. Our preference to Hard Law is not perfect to the development of Administrative Law. Law, as a regulator to social relations, should distinguish complexity of different social relations and adjust them with corresponding regulations of different strength. The abuse of state coercive power will not only damage the legitimacy of legal system, it will also result in the waste of legal resource. To build a state with an adequate legal system, especially a legal society, we should rely on Soft Law and put emphasis on democratic consultation to lessen enforcement and realize a higher social harmony.In fact, with the rise of public administration, Soft law and hard law are becoming two patterns of manifestation in modern legal system, and law is transforming from the traditional single mode of Hard law to a mixed mode of Hard and Soft law. Due to its flexibility, responsiveness and negotiability, soft law has played an indispensable role in adjusting the relationship between administrative subject and administrative relative person, and maintaining normal order in society. But from the current situation of our administrative soft law, the form of soft law is in chaos because of the phenomena like disordered procedures, offside subject, and casual creation in its formulation. The blurred lines between soft law and morality, or soft law and hard law, will lead to the crossing of the line. Soft and hard laws are easy to contradict with each other due to the different standpoints, benefits and measures. So Chinese administrative law should develop from the single reliance on hard law to a dual structure of soft and hard laws. This thesis begins with an introduction of the concept of soft law, then analyzes its values, evaluates the current situation of legislation at home and abroad, and gives some appropriate advice on the application of soft law in administration, in order to contribute to the perfection of the legislation and practice of Chinese administration soft law.The thesis consists of four parts. The first part is an exploration of the basic theories of soft law, with a focus on its definition and development. Based on the study of the history of soft law at home and abroad, the thesis analyzes its current development, and help China’s legislation and judicial system acquire more advanced experiences from other countries. The second part reviews the popularity of soft law in China. Many lawyers and sociologists came up with introducing soft law into the adjustment of social relationships. Through soft management, balancing the relationship betweenadjusting public services and building a harmonious society will be beneficial to the open public management. The appearance of soft law in administrative law system will benefit the development the public management, which serves the purpose of social transformation and reformation. The thesisalso analyzes its current situation in administrative law and the necessity and feasibility of the application of the soft law. The third part discusses adopting soft law in administrative enforcement, as a method of soft management, to supplement hard law. It is also about the specific application of soft law system in Chinese administration from three aspects:the transforming of administrative legislation ideas, reformation of administrative management and the perfection of judicial relief system.Soft law and administrative law can cover the shortage of hard law and outer management, but it is their combination and supplement that can reach the best controlling. The fourth part is the conclusion, which proposes that effective operation of legal system needs both hard and soft, a variety of hybrid laws.