Research On The Negotiation Mechanism Of Administrative Legislation

Scientific and democratic administrative legislation(abbr.AL)can effectively avoid a large number of administrative disputes,save judicial resource as well as the cost of administrative enforcement.By means of questioning and rethinking about the function of the existing democratic legislative system,such as administrative legislative hearing and soliciting opinions,the author concludes that the improvement of science and acceptability of administrative legislation relies on the promotion of negotiation mechanism,which is not only related to the source of legitimacy of administrative legislation,but also will make a difference to the cost of further administrative enforcement and relationship between the administrative organ and counterparts.This article mainly introduces the theory of negotiation mechanism,analyses its deficiency combined with the practice of online car-hailing service legislation,and then proposes some theoretical supposition to make it perfect.The first part is an overview of the negotiation mechanism on administrative legislation(abbr.NMAL).This part makes a definition on the basic concept and feature of negotiation on administrative legislation and compares it with administrative negotiation,administrative legislative hearing,public opinions solicitation and expert consultation,so as to make negotiation's value and pinpoint clear.After explaining what the NMAL is,this part further teases out its origin: One is the rise and development of extraterritorial regulatory negotiation,and the other one is how the domestic regulatory negotiation came into being.The second part set forth the necessity and feasibility of importing negotiation mechanism(abbr.NM)to AL.Considering the reality that there is not substantial NMAL in our country,if we want to utilize and develop this mechanism,it's necessary to demonstrate the necessity and feasibility at length.In the aspect of necessity,the author proves it from the following four angles: Firstly,AL must respond to the problem of its legitimacy;secondly,balance of multiple interests depends on the negotiation between interest subjects;thirdly,the AL process needs indispensable supervision and restriction;fourthly,it's urgent to improve AL's acceptability.Regarding the feasibility,firstly,the present policy in China has provided enough basis of regulatory negotiation,secondly,our legal provisions also contains the philosophy of it,which has not been externalized as normalized mechanism;besides,there is solid theoretical support to import NM to AL.The Third part is a system practice and problem analysis of NMAL.This part makes a systematic presentation and analysis for the practice of “Online car-hailing” service legislation in Shenzhen.The municipal law office provided interested subjects with a rational communication platform in the form of web hearing and,in the process of communication,all subjects managed to eliminate the individual missing cognitions,made others understand and accept respective point of view through dispute and reasoning,and finally reached an agreement and had a virtual impact on the legislation draft.It was a positive,beneficial try of negotiation,but it also revealed many deficiencies existing in NMAL.The author analyzed the problems of current NMAL and its reasons in this part.The last part includes some concrete suggestions on how to perfect the NMAL in our country.By combining with the useful experience in extraterritorial regulatory negotiation and local legislation negotiation at home,this part discussed how to perfect the NMAL from five aspects.Firstly,specify the conditions and range of negotiation if applicable.In consideration of administrative authority and efficiency,the author thinks that not all the administrative legislations need to be negotiated and,some legislation might not be able to meet the requirement of starting a negotiation because of their own characters.Secondly,how to pick up the subjects participating in negotiation,which legal rights they should enjoy and how to guarantee these rights.These participants are mainly administrative subject and related interest parties and,during the negotiation,they shall be given equal principal status,the latter shall be treated equally,the consensus reached by the negotiation shall be respected and its reasonable opinions shall be adopted.Thirdly,establish the principles of negotiation.In the course of negotiation,each side must uphold the principle of equality and voluntariness and it is forbidden for one side to force others to accept its own point of view.The whole process shall also obey the principle of legality,proportionality and openness.It contains making the administrative legislation public,establishing a conference committee,carrying out the motion procedure of negotiation,organizing related interest representations to discuss and gathering public opinions,deciding when to break up a procedure of negotiation and explaining why the negotiation opinions are adopted or rejected.Fifthly,construct supervisory mechanism for negotiation.Fully guarantee the related interest subjects' rights of participation must rely on empowering them to supervise the negotiation and ask for relief when they refuse to obey the opinions feedback from administrative subject.