On Administrative Authorization

This article takes Article 24 of the Administrative Punishment Law(2021)as the research perspective,and aims to propose that the transfer of administrative punishment power to township governments and sub-district offices in Article 24 is essentially administrative authorization,so as to develop a new administrative authorization theory.The essence of “Jiao You” is transfer,and the “Jiao You” of administrative punishment power is the transfer of administrative punishment power.The transfer of administrative power is a kind of authorization in form,and the essence of authorization is the distribution of power.The distribution of administrative power is indeed the authorization in the administrative law,including the constitutional authorization,the authorization of laws and regulations and the administrative authorization.Due to the existence of institutional obstacles,the authorization of laws and regulations is difficult to be used as the authorization path of Article 24 of the Administrative Punishment Law.Meanwhile,the previous theory of administrative authorization has lag and inherent defects,and it is difficult to provide a theoretical basis for the “Jiao You”,which makes the existing theories fail to integrate with legislation.Therefore,the theory of administrative authorization needs to be developed and updated.The new theory of administrative authorization has a new structure.The legality and validity of administrative authorization depends on the satisfaction of at least six elements,namely: the subject of authorization is an administrative organ,the content of authorization is administrative power,the object of authorization is an organization,and the scope of authorization should be relatively clear,follow the legal authorization procedures and assume the corresponding authorization responsibilities.Furthermore,administrative authorization should not only follow the principles of general administrative law,but also conform to the special principles of administrative authorization,Which include: the principle of statutory authorization,the principle of explicit authorization,the principle that administrative power should not be arbitrarily delegated,the principle of necessary authorization,and the principle of open authorization.In terms of practice,this paper examines the practice of administrative authorization in Beijing,Shanghai and Guangdong,and conparatively analyzes the authorization methods and authorization content in respective.It is believed that there is a transition from a single comprehensive law enforcement model to a composite model of “comprehensive law enforcement + administrative authorization” in the decentralization of administrative law enforcement power,and will eventually return to the practice law of a single administrative authorization model.The organization,coordination,evaluation and supervision after the administrative authorization is an important part of the administrative authorization system from the perspective of Article 24 of the Administrative Punishment Law.Since the township government and the sub-district office do not have functional departments,the grass-roots law enforcement is characterized by comprehensive law enforcement,and the township government and the sub-district office should be internally divided and coordinated for administrative affairs.The focus of the evaluation of administrative authorization should be on the post-authorization evaluation,which is to evaluate whether the authorized agency exercises its administrative power well and whether it achieves the purpose of authorization.Among them,“the urgent need for grassroots management” and “effective undertaking” are two basic elements of evalution after the transfer of administrative punishment power.In terms of supervision after administrative authorization,the supervision through the National People’s Congress is rather weak,and it is difficult to directly and effectively supervise the authorized organizations.In the meantime,judicial supervision methods such as litigation have unfavorable factors like judicial passivity and high litigation costs,so it should not be used as the main method of administrative authorization supervision.The supervision of administrative authorization shall take the internal supervision of the administrative system as the main supervision method,mainly by revoking the administrative authorization and adjusting the scope of the administrative authorization to realize the supervision upon administrative authorization.