Administrative Permission Transfer In Disguise And Its Management

Article 9 of "Law of the People's Republic of China on Administrative Permission" stipulates,"Administrative permission obtained according to law shall not be transferred except where laws and regulations provide that it may be transferred according to statutory requirements and procedures",Contains two levels of meaning: on the one hand,administrative permission cannot be transferred in principle;on the other hand,administrative permission can be transferred under conditions and procedures that meet the requirements of laws and regulations.However,with the continuous development of China's market economy,in addition to the transferable administrative permission already stipulated by laws and regulations,in practice,there are also through equity transfer,asset transfer,signing of contractual management contracts,signing of asset lease contracts,and cooperation The case where the administrative permission is transferred in disguised form in the form of business or partnership agreement.Administrative permission are borrowed in disguised form as legal acts that are not explicitly prohibited by the current laws and regulations,and these actions bypass the cumbersome administrative approval procedures and circumvent national supervision,which also brings Many social hazards including production safety accidents,disrupting the normal market supervision order,and damaging consumer interests.The reason for the transfer of administrative permission in disguise is multi-faceted.There are two main reasons for legislation: first,the legislative provisions are too principled;second,the relevant provisionsof the civil law and administrative law are not well connected.The reasons for administration mainly include the poor communication of information between administrative agencies and the inadequate supervision of administrative permission by administrative agencies.The reasons in judicial practice can be summarized as the inconsistency of the judicial recognition standards for disguised transfer of administrative permission and the lack of public law thinking when civil judges try cases.In order to better regulate the administrative permission transfer system,the improvement of the legal regulation of the disguised transfer of administrative permission in China can also be carried out from three aspects: legislative,administrative and judicial.Legislation should clarify the scope and procedures of the transfer and focus on the improvement of the connection mechanism between the civil laws;administratively require the establishment of public information sharing mechanism between administrative agencies and strengthen the supervision and inspection of administrative agencies on the implementation of administrative permission;judicially It is necessary to focus on the application of administrative law in the field of civil trials and the improvement of civil judges' thinking in public law.