| Nowadays China’s social and economic situation has become increasingly complex against the background of intensifying the reform in all-round way. The administrative democratization has been trending heightened, cooperative governance has been the theme of public administration, and cooperative administration is in the ascendant. Represented by administrative interview, the flexible administrative means which give consideration to both weak mandatory and cooperation of the two parties emerges as the times require. With the extensive application in fields of administrative law enforcement, such as price supervision, state land supervision, consumer rights protection, ecological environment protection, etc., the flexible administrative means propels the deep reform of administrative law enforcement and administrative governance model. The widespread application doesn’t provoke the sustainable, systematic and profound research of educational circles. The clarification of legal nature is the premise of the administrative interview research. In order to reach a basic consensus of theoretical research, the definition of administrative interview’s legal attribute must be clear, reasonable and we should take into consideration both needs of the state and the interests of the collectives, so that we may concentrate our attention on discuss and demonstrate the current barriers and the choices of strategies, and then, we will make a concerted effort on academic research.The first part of my thesis aims to reveal the secrets of administrative interview. In order to get rid of the sectoral characteristics and randomness in the practice of administrative interview, and strengthen the synthetic research, according to different objects of interview, I divide the administrative interview into two categories, internal and external administrative interview. For the response to the core proposition of modern administrative law, I recognize fully the importance of internal administrative interview, and meanwhile I narrow reasonably the focus of research to the external administrative interview. In the elements of administrative interview, its principal parts consist of administrative interview organs and objects, and its procedure includes three stages:the preparation, application and feedback, as for interview agreement, it’s a kind of administrative contract. Administrative interview possesses multi-objective and function, such as communication and consultation, buffer and prevention, warning and supervision, supplementation and substitution, etc.The second part attempts to seek the legal attribute of administrative interview, by formalizing the administrative act. From different aspects like the debate of "separate or subsidiary act", "legal or factual act"," administrative guidance or new-type act", I analyze, expound and prove that it is always found biased and bogged down in difficulties when we make an either-or judgement on the legal attribute of administrative interview. In order to extricate ourselves from the predicament of "formalizing administrative act theory", we should add the theoretical marrow of "administrative legal relationship theory" and "administrative process theory" to the legal attribute research of administrative interview, on the basis of traditional administrative act theory reform. From the realistic standpoint that we insist on advancing gradually in due order, I endow the administrative interview with an interim theoretical definition," administrative guidance under normalization and restrictions", for better development of the theoretical construction of legal institutionalization, systematization and typification.In the third part, I’m conscious of the necessity for confront the reality, and seek the realistic barriers which hinder the legal development of administrative interview. The legislation of administrative interview not only shows the tendency to be multi-polarity on legislative body, but also barely satisfactory on microcosmic aspects, like the concrete legislative content and the legislative procedure, etc. The abuse of administrative interview discretion is revealed in three issues during the exercise of interview:"out of position"," dislocation" and "offside". And the insufficiency of information disclosure and public participation form the closed operation of administrative interview. As a kind of weak mandatory administrative act, administrative interview contradicts the traditional administrative act effectiveness theory. The instability of administrative act effectiveness can still be seen everywhere, although the "covert mandatory" is still strong. In addition, the obstruction of administrative interview relief mechanism brings that the rights relief is habitually out of its position.In the fourth part, on the basis of fully realizing legal regulations and restrictions’ necessity, I advance a strategic choice which promotes the synthetic research of dynamic administrative interview. As for research method, I apply synthetically not only "formalizing administrative act theory","administrative legal relationship theory" and "administrative process theory", but also use several regulation and restriction means in "government regulation and restriction theory" for reference, such as the regulations on standards, information and inspiration, so that we could achieve a benign interaction between policy objective and legal principle. In view of the prominent problems in the implementation of administrative interview, we need to make a series of strategic choices with legal thought and legal method, adopt the legislative model which advance in regular order, and refine, from perspectives economic and juridical, the deep and foundational standards to start interview. And then, by introducing the trust protection principle, we establish the persistent and stable interview effectiveness mechanism. At the same time, we deal appropriately with the problems about information disclosure and public participation during the interview process, perfect public law relief mechanism, and lay the initial foundation of administrative interview legal construction. |
