The so-called administrative guidance means that the administrative organ, within the scope of its functions, duties or affairs under its jurisdiction, adopts timely and flexible guidance, opinions and suggestions that are in line with the spirit, principles, rules or policies of the law and are not compulsory by the state, so as to guide the administrative counterpart to do or not do something according to his own wishes, so as to effectively achieve some administrative purpose.
Industrial and commercial administrative guidance refers to that the administrative department for industry and commerce, within the scope of its functions and powers, uses non-coercive means to guide the administrative counterpart to do or not do some behavior in order to achieve some administrative purpose. Administrative guidance is non-mandatory, efficient, flexible and democratic.
Administrative guidance comes into being with the rapid development of society, which has outstanding institutional value and distinctive characteristics of the times. As the national functional department in charge of market supervision and administrative law enforcement, the administrative department for industry and commerce has great practical significance to introduce the administrative guidance system in the field of supervision and law enforcement. 1, which is beneficial to broaden the field of industrial and commercial supervision and make up for the shortcomings of existing legal means.
With the rapid development of modern society, new formats and business fields are constantly emerging, such as e-commerce, funds, logistics, securities, lottery and so on. Due to the limitation of the cost of legislation, the development degree of social relations adjusted by law and the understanding level of legislators, the law is obviously lagging behind and it is impossible to make clear provisions on all new formats in time. According to the principle that there is no explicit stipulation in administrative law, the industrial and commercial authorities can do nothing about these emerging formats. Because of its simplicity and flexibility, administrative guidance is most suitable to intervene in these emerging industries and guide their healthy development. Thus, it makes up for the lack of legal means, broadens the field of industrial and commercial supervision, and can create a good foundation for future legislation and supervision. 2. It is conducive to improving industrial and commercial functions and enhancing industrial and commercial image.
It is far from enough for modern administration to play the role of "night watchman". With the transformation of government functions, industrial and commercial administrative organs should also keep pace with the times, on the one hand, strengthen management, on the other hand, provide high-quality, efficient and convenient services for the society. Administrative guidance caters to this demand, for example, the information release system in administrative guidance is conducive to providing accurate and complete information for the relative person; The contract demonstration system is conducive to helping the parties to distribute their rights and interests reasonably, thus improving the industrial and commercial functions. In addition, administrative guidance is a flexible administrative behavior, which has obvious affinity compared with the traditional mandatory administrative methods. It puts the manager and the managed in the position of relatively equal, which embodies the color of democracy more, so it is beneficial to improve and reshape the industrial and commercial image. 3. It is conducive to improving supervision efficiency and reducing administrative costs.
With the development of modern society becoming more and more complex and diversified, the administrative power has been sharply strengthened. The state promotes social welfare by expanding administrative power and strengthening administrative intervention. However, administrative coercion is not omnipotent, and its effectiveness is often greatly reduced because of the tangible or intangible resistance of the other party. Some administrative means with weak rights, such as administrative guidance, will encourage the relative person to actively participate in the realization of the administrative purpose or consciously obey the will of the administrative organ, which is conducive to internalizing the administrative purpose into the self-awareness of the managed person, thus improving the efficiency of industrial and commercial supervision. In addition, the warning system in industrial and commercial administrative guidance urges the counterpart to correct mistakes in time and avoid entering administrative punishment procedures such as filing a case for investigation, so as to reduce administrative costs by timely warning the budding or minor violations that have not caused damage to others or social welfare.
The applicable field of industrial and commercial administrative guidance refers to the scope and boundaries of administrative guidance implemented by industrial and commercial organs according to the powers entrusted by laws and regulations or their own functions. According to the existing industrial and commercial administrative guidance practice, at least in the following areas: 1, new business areas.
In contemporary society, new commercial fields are constantly emerging, such as e-commerce, online advertising, logistics, funds, lottery and so on. However, compared with the social reality, the legal provisions are relatively backward, and it is impossible to keep up with the development pace of social and economic life in time and make comprehensive provisions on all emerging formats and business fields. Because of its flexibility and non-mandatory characteristics, administrative guidance is most suitable for industrial and commercial authorities to intervene in the supervision of these emerging industries. For example, at present, many industrial and commercial authorities bring network operators into the scope of supervision by filing. 2. There is no provision for punishment for illegal acts.
As mentioned above, due to the restriction of legislators' understanding level and the development degree of social relations adjusted by law, "legal loopholes" will inevitably appear.
. For example, the Anti-Unfair Competition Law does not provide specific punishment measures for unfair competition behaviors such as business slander, infringement of business secrets, and sales below cost price. In practice, we intervened in the above-mentioned unfair competition by administrative suggestions. 3. Market participants need some information or services provided by industrial and commercial authorities.
Modern society is an information society, and timely and accurate information is very important for operators. However, due to some objective reasons, market participants cannot obtain timely and accurate information. At this time, the industrial and commercial authorities can provide relevant information to the society according to their functions. For example, many industrial and commercial websites have become an important window for information disclosure. In addition, operators lack a correct understanding of market rules and reasonable behavior, which also requires the industrial and commercial authorities to give guidance or help in a positive administrative way. For example, we are now implementing a model contract text system to provide investment advice for operators and so on. 4. Social relations need the intervention of industrial and commercial authorities.
Contradictions in modern society are intertwined, and sometimes the parties can't solve them themselves, so administrative rights need to be involved in coordination or mediation, thus creating a fair competition and harmonious market economy environment. For example, industrial and commercial authorities mediate contract disputes, consumer disputes, and coordinate conflicts of interest between different industries. 5. Pre-prohibition and post-remedy of minor violations of laws and regulations.
Because operators don't know much about laws and regulations or don't intend to know about them, they occasionally have minor violations or tend to violate laws and regulations, so they can use warning methods to warn in advance, educate offenders, urge the parties to correct their mistakes actively, and fundamentally reduce violations. 6. According to the industrial and commercial functions, in order to promote the realization of industrial and commercial administration objectives, other areas where administrative guidance can be implemented.
The scope of industrial and commercial administration is extremely extensive, so administrative guidance also has a wide range of application fields. As long as it does not violate the legal principles, administrative guidance can be implemented within the scope of industrial and commercial administrative functions or regulatory affairs, such as administrative incentives, guidance from industry associations, policy review meetings, etc.
Administrative guidance is the general name of an administrative behavior composed of various behaviors, and the industrial and commercial administrative guidance system is a unified organic whole composed of a series of specific guiding behaviors. According to the industrial and commercial functions, a perfect industrial and commercial administrative guidance system should include the following contents: 1, discussion system; 2. Information disclosure system; 3. Administrative warning and warning system; 4. Administrative reward system; 5. Guide the demonstration system; 6. Administrative mediation and coordination system; 7, the administrative guidance error relief system. As mentioned above, there are still many limitations in the guidance system of industrial and commercial expropriation, which must be improved and perfected to better serve China's market supervision and administrative law enforcement. How to establish and improve the industrial and commercial administrative guidance system? I think we should start from the following specific aspects: 1. Establish and improve the information disclosure and publicity system of the administrative department for industry and commerce.
Modern society is an information society, and timely, accurate and systematic information is very important to every citizen or social organization. Due to the particularity of its function, position and work nature, the administrative department for industry and commerce has considerable advantages in collecting, sorting out and revealing information. At present, we should step up the construction of the "Red Shield Information Network", strengthen and improve the information bases such as enterprise credit system, early warning system of bad behavior of market participants, and good behavior record system, establish a convenient information inquiry system, vigorously promote the openness of government affairs, provide the other party with administrative information, credit information, economic information, legal policies and other relevant information, and guide the other party to make correct behavior choices. This work should be further standardized to form an institutionalized and regular model. 2. Establish and improve the administrative early warning and warning system.
At present, many industrial and commercial institutions have implemented this system, but the scope of use and operating procedures of warnings and warnings are not clearly defined, and the names used are various, including administrative suggestions, administrative warnings, violation warnings, industrial and commercial tips and so on. Therefore, it is necessary to improve these aspects to meet the requirements of standardization and institutionalization. When the time is ripe, SAIC may consider formulating normative documents in this regard, unifying the name, scope of use and operating procedures of administrative warnings, and formulating unified and standardized legal documents. 3. Establish and improve the administrative reward system.
Administrative reward is an administrative act in which the administrative subject gives material or spiritual rewards to units or individuals who have made contributions to the country or society or have outstanding performance in a certain aspect according to the prescribed conditions. ⑦ At present, the industrial and commercial authorities implement the annual inspection system for some enterprises that abide by the law and have standardized management, and award some operators the titles of "consumer trustworthy units" or "enterprises that honor contracts and keep promises", which are all acts of administrative reward. The implementation of these incentive measures has, to a certain extent, promoted the operators' law-abiding operation and quality service, thus playing a good role in promoting the market order. While promoting this system, we should further improve and standardize the conditions, procedures and evaluation methods of awards, so as to make administrative awards truly fair, just and open, so as to achieve the purpose of encouraging the advanced and urging the backward. 5, improve and perfect the demonstration and guidance system. Since 1990, the industrial and commercial departments have implemented the "model contract text" system, which has been recognized by the society and achieved good results in guiding the parties to reasonably determine the rights and obligations of both parties and reducing unnecessary contract disputes. In recent years, in order to improve the service level, the industrial and commercial departments provide trademark registration consultation to the parties and guide enterprise registration. In some places, "demonstration roads" and "demonstration streets" are being built, which is also a useful exploration to improve the demonstration system. It is necessary to fully sum up the existing experience, explore new areas of demonstration and guidance, improve and perfect the demonstration and guidance system, and guide market players to operate in a benign manner within the framework of market norms. 4. Improve the system of administrative mediation and administrative coordination.
Under the condition of market economy, the contradictions and conflicts of interest between the opposing sides have increased accordingly. When these contradictions have not yet reached the stage of administrative treatment or litigation, the administrative organs will come forward to coordinate and mediate, which will help reduce the loss of interests and reduce the mediation cost of society. The industrial and commercial departments have accumulated some experience in this field in the past, but under the new situation, according to the new requirements of socialist market economy and legal system construction, they should improve and strengthen it, improve the administrative mediation and coordination system within the scope of legal provisions and their own functions, and further improve the market order. 5. Establish a relief system for improper administrative guidance.
Administrative guidance, like other administrative actions, will inevitably lead to mistakes or damages. According to the requirements of modern rule of law, "there must be relief if there is damage."
. Therefore, the corresponding relief system should be incorporated into the administrative guidance system of the industrial and commercial departments, so as to provide necessary relief measures for the counterpart who suffers from improper or illegal administrative guidance.
This year is the "Innovation Year of Prospering Business and Enriching the People" determined by the Provincial Bureau. The Municipal Bureau proposed "adhering to the spirit of Scientific Outlook on Development and the Fifth Plenary Session of the Seventeenth Central Committee of the CPC, thoroughly implementing the spirit of the provincial industrial and commercial administration work conference, the ninth enlarged meeting of the Second National Committee of the Municipal Party Committee and the city's economic work conference, taking" five more "as the guide, centering on the main line of" prospering business and enriching the people and innovating the year ",consciously integrating into the overall situation of development, and actively creating" four platforms ". In his speech, Director Shen talked about "further implementing the administrative guidance system and strengthening the administrative guidance on enterprise registration, annual inspection photos, trademark registration, advertising and consumer rights protection. , promote harmonious supervision, improve service development ability and law enforcement level. " It can be seen that administrative guidance has penetrated into our specific work, and it is urgent and imperative to strengthen administrative guidance.
The above is my superficial understanding of administrative guidance, without investigation, just on paper. I urge all leading comrades to criticize and guide.